MR J BRENNAN v COMMISSIONERS OF INLAND REVENUE [2003] UKEAT 0521_03_1807

EMPLOYMENT APPEAL TRIBUNAL
Bailii case number: [2003] UKEAT 0521_03_1807Case No Appeal No. EAT/0521/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J BRENNANAPPELLANTCOMMISSIONERS OF INLAND REVENUERESPONDENT
Before
His Honour Judge Peter ClarkDate 18 July 2003
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT JUDGE PETER CLARK : This appeal comes before for expedited hearing in the following circumstances. The Applicant, Mr Brennan, is the Applicant in proceedings presently before the Liverpool Employment Tribunal (case No. 2100731/2003). The Respondents to those proceedings are the Commissioners of Inland Revenue. Neither party appears today and I am left to decide the appeal on the papers. The bundle lodged by the Appellant does not include the Tribunal pleadings. However, from the papers which I have seen I infer that the Appellant is currently employed by the Respondent and that he brings a claim of disability discrimination. Further than that I am unable to discern the underlying substantive issues between the parties.[2]The orders under appeal are those made by a Chairman, Mr Reed, contained in letters dated 2 and 4 July 2003. On both occasions that Chairman refused an application made on paper by the Appellant for a postponement of a full merits hearing in this case fixed for 22-23 July.[3]The basis of the Appellant's application made on 1 July was that he had been seeking legal representation and had now managed to find council ( sic ), that is counsel, a Mr Trotman, who was prepared to represent him on a pro bono basis. However Mr Trotman was unavailable for 22-23 July, dates fixed, it would seem, back in April or thereabouts. Thus a postponement application was made and alternative dates from 6-20 August and 17-30 September offered.[4]The Chairman replied, through the Tribunal secretariat the following day. There is no indication that the Respondent's views on the application were first sought. The reason given for refusing to postpone the hearing was expressed in this way:
"Your request for a postponement is refused, the proceedings have been on foot since February, if you have not made adequate enquiries to familiarise yourself with the availability of assistance until this stage, that does not warrant a postponement."
[5]Stung by that response the Appellant wrote again on 4 July asking the Chairman to reconsider on the basis of the Appellant's efforts to obtain representation. Those efforts included:(1) (1) an unsuccessful attempt to obtain representation through his home insurance policy, a process which took from 6 February to 1 April 2003;(2) (2) consulting a solicitor in April who, I see, quoted between £5,000 to £7,000 to conduct the Appellant's case, a financial burden which the Appellant regarded as too onerous;(3) (3) consulting the Disability Rights Commission ("DRC"), which declined to provide legal assistance, on the grounds, I see, that the Appellant's case did not raise a point of legal principle; that he was capable of conducting the case himself and that the case did not involve dismissal and consequent levels of compensation, if successful. Nevertheless, the DRC did contact an organisation called the NCFRAS which I assume to be a free legal representation organisation, leading to the offer of free representation by Mr Trotman, limited to certain dates excluding 22-23 July.[6]The Chairman responded by return on 4 July, again it appears without seeking the views of the Respondents, refusing the Appellant's renewed request on the ground that he:
"... submitted a listing stencil in April and this case was listed accordingly. If you had any problems in relation to those dates, that was the time for you to raise them."
[7]Against that background I turn to the present appeal. It must be plainly understood that appeals against interlocutory orders such as these can only succeed where first the Appellant establishes an error of law on the part of the Chairman: Medallion Holidays Ltd v Birch [1985] ICR 578, approved in Ashmore v British Coal Corporation [1990] IRLR 283 (CA). I do not have a general power of review: cf. British Library v Palyza [1984] ICR 504. The Chairman has a wide discretion to grant or refuse a postponement under Rule 15(7) of the Employment Tribunal Rules of Procedure 2001 : Carter v Credit Change Ltd [1979] ICR 908. That means that such orders are challengeable only on what may be loosely be called Wednesbury grounds: Noorani v Merseyside TEC Ltd [1999] IRLR 184 . In other words, where the Tribunal has exercised discretion under a wrong principle of law; has failed to take into account relevant factors or taken into account irrelevant factors or has otherwise reached a conclusion which is legally perverse.[8]Has the Appellant shown any error of law in this case? It seems to me that there is one factor which the Chairman could and should have taken into account but on the face of it did not, that is, the attitude of the Respondents. In the general run of cases a party who is ready for a fixed hearing will be reluctant to see that date vacated. In some cases it may be that the opposing party is not ready for trial and welcomes the opportunity for an adjournment. A Chairman may well consider in the first situation that the opposing party's opposition to the postponement application is a factor, although not determinative, which points away from granting the application. In the second situation he may have little sympathy with either party. However there is a third possibility. That in a case, such as the present, where the employment relationship is continuing and the Respondent wishes to adopt a fair-minded approach, although the Respondent is ready for trial it does not wish to take advantage of its employee's lack of professional representation. That appears to be the position here because, asked by the EAT to indicate whether the appeal is opposed, the Respondent's solicitor wrote on 14 July by fax to say that it is not and that although the Respondents are fully prepared and have all witnesses available for the full merits hearing fixed for 22-23 July the Respondents do not oppose that hearing being postponed should the Appellant's appeal be successful. Given that position taken by the Respondents in relation to the appeal I can only infer that had they been canvassed by the Tribunal as to the postponement application they would not have opposed it and that would have been a relevant, although not determinative factor, for consideration by the Chairman.[9]In these circumstances I have concluded that the Chairman fell into error by failing to discover and take into account the attitude of the Respondents to the Appellant's application.[10]Having so concluded I shall exercise my powers granted by Section 35 of the Employment Tribunals Act 1996 to determine the postponement question myself, based on the material now before me.[11]In giving directions for the expedited hearing of this appeal on 10 July, Burton P, at paragraph 5 required the Appellant to lodge written confirmation from the NCFRAS as to the availability and willingness to act of Mr Trotman. In response the Appellant has produced a fax from the DRC dated 15 July in which it is confirmed that on 19 June a DRC caseworker spoke to Mr Trotman on the telephone and ascertained that he was willing to represent the Appellant in principle and giving his available dates (excluding 22-23 July). I accept that evidence.[12]How then am I to exercise my discretion? Although not provided with any details of the substance of the disability discrimination claim brought by the Appellant experience tells me that these claims are rarely easy to present. The Appellant is prepared to proceed in person, but I think it likely that a fair resolution of the case will benefit from both parties being professionally represented. It will ease the understanding of the issues for the Respondent and the Tribunal.[13]I take into account the attitude of the Respondent, which does not wish to take unfair advantage of the Appellant, its employee's, lack of representation on 22-23 July.[14]I also take into account the importance of the smooth running of the Tribunal system. I fully appreciate the point made by the Chairman that the Appellant had the opportunity to put forward his available dates. Nevertheless, I am equally satisfied that the Appellant has made all reasonable efforts to obtain representation by the various means earlier described and it is through no fault of his that he finds himself in his current position.[15]Balancing all these factors I have concluded that the appeal should be allowed and the dates presented listed, 22-23 July, be vacated. The case will be re-listed, taking account of the dates offered by Mr Trotman. However, I find it hard to envisage that any further application for a postponement will be granted should such application become necessary in the future on grounds of lack of representation for the Appellant.