MR T G OSBORNE v THE FIELD MENSWEAR LTD [2001] UKEAT 296_01_1203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 296_01_1203Case No Appeal No. EAT/296/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T G OSBORNEAPPELLANTTHE FIELD MENSWEAR LTDRESPONDENT
Before
His Honour Judge Peter Clark Mrs R Gallico Mr G H WrightDate 12 March 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent NEITHER PRESENT NOR REPRESENTED JUDGE CLARK This is an Appeal by Mr Osborne, the Applicant before the Reading Employment Tribunal against an Interlocutory Order made by a Chairman, Mr Hardwick on 7 March 2001 postponing a hearing of the Applicant's complaint of unfair dismissal brought against his former employer, the Respondent, The Field Menswear Ltd fixed for 13 March and directing that his case be combined with that of a Mr Redman who also brings a complaint of unfair dismissal against the Respondent. Mr Redman's case was also postponed, it having been due to be heard separately on 20 March.[2]We have seen the pleadings in both cases. It is the Respondent's case that due to poor trading results economies were necessary and the two general managers, Messrs Osborne and Redman, were fairly identified for redundancy. The two applicants, on the other hand contend that their dismissals were unfair.[3]So far as Mr Osborne's case is concerned it was originally listed for hearing on 21 February. By a letter dated 24 January Mr Chells the managing director of the Respondent and, we are told, brother-in-law of Mr Osborne, successfully applied for a postponement on the basis that he would be on holiday that day.[4]The Appellant opposed the application on the basis that he did not want his claim delayed any further. Nevertheless the postponement was granted by a Chairman by letter dated 6 February. On 16 February the parties were given notice of hearing in the Osborne case for 13 March.[5]On 2 March new representatives acting for the Respondent, H R First, wrote to the Tribunal asking for postponement of both cases. The ground for application in Mr Osborne's case was that the Respondent's' previous representative had been called away on a family emergency necessitating the change of representation. In addition application was made for both cases to be heard together.[6]It is those applications which were granted by Mr Hardwick on 7 March. This appeal was launched by a letter from Mr Osborne dated 9 March 2001. He points out that the first postponement was granted so that Mr Chells could go on holiday with his family and the second so that his new representative could prepare a case which, Mr Osborne points out, ought by then already to have been properly prepared.[7]He complains that the case has been delayed at the expense of himself and his family in order to accommodate Mr Chells' social activities and what he describes as stalling tactics. Further, he objected to his case being combined with that of Mr Redman. The combined hearing will, he submitted, put the Appellant to additional costs and he makes the point that he wishes to pursue his own claim individually and to represent himself. We have heard today from Mr Osborne. The Respondent has not appeared but we have taken into account its written Answer faxed to the Appeal Tribunal this morning.[8]We endeavoured to explain to Mr Osborne that appeals to the Employment Appeal Tribunal are on points of law only. That applies to appeals against Interlocutory Orders such as these as much as substantive decisions – see Medallion Holidays Ltd v Birch (1984) ICR 504 EAT approved in Ashmore v British Coal Corporation (1990) IRLR 283 Court of Appeal. In Adams and Raynor v West Sussex County Council (1990) IRLR 215 Wood J identified three issues to be decided by the Employment Appeal Tribunal when considering Interlocutory Orders:(1) Whether the order was made within the powers given to the Tribunal(2) Whether the discretion has been exercised within guiding legal principles(3) Whether the exercise of discretion can be attacked as perverse – see Bastick v James Lane (1979) ICR 778 EAT approved Carter v Credit Change Ltd (1979) ICR 908 – 918 Court of Appeal. Bearing that guidance in mind we turn to the two Orders made by the Chairman now under appeal. Postponement[9]The power to postpone a hearing is expressly contained in Rule 13(7) of the Employment Tribunal Rules of Procedure 1993. It is a wide discretion – see Carter v Credit Change . Whilst we have some sympathy with the Appellant's position we are unable to say that the Chairman's decision to postpone the substantive hearing fixed for tomorrow is legally perverse in any of the senses identified by Mummery J in Stewart and Cleveland Guest (Engineering) Ltd (1994) IRLR 440 – 443.[10]In these circumstances we must dismiss this part of the Appeal. Combined Proceedings[11]Rule 18 gives power to the Tribunal or a Chairman to order that two or more originating applications may be combined where common questions of law or fact arise or the relief claimed in both sets of proceedings arises out of the same set of facts or for any other reasons which make such an Order desirable.[12]However, Rule 18(2) is in mandatory form. It provides:
"The Tribunal shall only make an Order under this Rule if (a) each of the parties concerned has been given an opportunity at a hearing to show cause why such an Order should not be made or (b) it has sent notice to all the parties concerned giving them an opportunity to show such cause"
[13]The requirement for Tribunals or Chairmen to comply with the giving of an opportunity to be heard on the question of what used to be called consolidation is in our view analogous with the strict requirements of Rule 4(7) before making a strike out Order – see Beacard Property v Day (1984) ICR 837.[14]In the present case we are told that the Chairman did not seek the views of either Mr Osborne or Mr Redman or his representative before granting the application made on behalf of the Respondent for the proceedings to be combined. His failure to do so in our judgement amounts to an error of law. The question that then arises is what course should we take? We can set aside the Combination Order and remit the matter to a fresh Tribunal or Chairman to reconsider the matter in the light of representations made by Mr Osborne and Mr Redman .[15]However, we have discussed the question of disposal with Mr Osborne. His real concern, he accepting that there are obvious similarities between his case and that of Mr Redman, is his fear that he will not be permitted to represent himself at the combined hearing. We have assured him that that is not the case. In these circumstances, he withdraws his objection to the Combination Order.[16]Accordingly, notwithstanding the error of law, we shall affirm the Tribunal's decision in the light of Mr Osborne's subsequent acceptance of the good sense of such an Order being made.[17]Thus, formally, we dismiss this Appeal but in doing so, having noted an error of law on the part of the Chairman, we reject the Respondent's application for costs. There will be no Order for Costs in this Appeal