DIRECT CARE SERVICES (A FIRM) v MISS G JAKOB [2003] UKEAT 6_03_1001

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 6_03_1001Case No Appeal No. EAT/6/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DIRECT CARE SERVICES (A FIRM)APPELLANTMISS G JAKOBRESPONDENT
Before
His Honour Judge Peter ClarkDate 10 January 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 HIS HONOUR JUDGE PETER CLARK This case is proceeding in the Exeter Employment Tribunal. The parties are Miss Jakob (Applicant) and Direct Care Services (Respondent).[2]By a Notice of Appeal lodged on 6 January 2003 the Respondent appeals against:
"The decision dated 10 th December 2002 of Tribunal to refuse an application for a review of their decision of 4 th December 2002"
[3]In view of the urgency of this matter, which concerns the refusal by a Chairman, Mr B E Walton, to grant a postponement of the substantive hearing of this case presently listed for 15 January 2003, I directed on 8 January that the appeal be listed for hearing today and gave further directions for the lodging of a Respondent's answer, bundles, Skeleton Arguments and lists of authorities.[4]Mr Parker, of an organisation called Euro Lawline, of Middlesborough, presently acting for the Respondent, has lodged a bundle of documents and Skeleton Arguments and list of authorities. Miss Jakob, who appears to be in person, has lodged an answer resisting the appeal. Neither attends today and I am left to decide this appeal on the papers.[5]Curiously, the bundle does not contain either the form IT1 or IT3, so I have no idea what this claim is about, only that a claim under the Disability Discrimination Act has apparently been withdrawn by the Applicant. That may not matter.[6]What is clear is that at a time when the Respondent was unrepresented the hearing date of 15 January was fixed by agreement between the parties. Then the Respondent instructed Mr Parker's firm on or about 26 November 2002. On that date Mr Parker faxed to the Tribunal notification that he was now acting.[7]On the following day he sent a further fax stating that he was due to appear in another case before the Newcastle Upon Tyne Employment Tribunal listed for 14 - 17 January 2003. In those circumstances he sought an adjournment of this case, giving further dates to be avoided.[8]On 4 December the Tribunal replied. The postponement was refused by Mr Walton for the following reasons:
"The date was arranged after consulting the parties. The late appointment of a representative who is unable to attend is an insufficient reason for a postponement. The Chairman also takes into account the Applicant's objections."
The Applicant's objections were contained in a letter dated 2 December. She pointed out that Euro Lawline must have been aware of the date fixed for the hearing when they took on the case. She was already finding the proceedings stressful. She had arranged time off work to attend on 15 January and had also arranged for possible witnesses to be available on that date.[9]Undeterred, Mr Parker tried again. On 5 December he made what is described as a request for review of Tribunal's Decision, invoking Rule 13 of the Employment Tribunal Rules of Procedure 2001, in particular that the interests of justice required a review. He also relied on Article 6(3)(c) of the Human Rights Act 1998 (presumably Article 6(3)(c) of the European Convention on Human Rights which appears at Schedule 1 to the Act).[10]On 10 December Mr Walton responded in these terms:
"Your application for review is refused for the reason already given - the appointment of a representative who is unable to attend is an insufficient reason. The applicant (sic) should have ascertained availability before instructing the representative"
[11]This appeal is brought against the Chairman's refusal to review his Order of 4 December. He was right not to do so. An interlocutory Order refusing a postponement application under Rule 15(7) of the Employment Tribunal Rules of Procedure is not a decision within the meaning of Regulation 2(2) of the Employment Tribunal (Constitution etc) Regulations 2001. The review procedure under Rule 13 applies only to decisions.[12]Secondly, insofar as the application of 5 December is to be treated as a further application for a postponement there was no change of circumstances which merited the Chairman re-visiting his earlier Order, see Goldman Sachs Services Ltd-v- Montali [2002] ICR 1251 .[13]Thirdly, even if I were to treat this appeal as an appeal against the Chairman's original Order of 4 December 2002 I would dismiss it.[14]Appeals against interlocutory Orders of Tribunals will only succeed where an error of law is made out. That means in practice that the Order offends Wednesbury principles, see Bastick -v- James Lane (Turf Accountants) Ltd [1979] ICR 778, 782B - C , per Mr Justice Arnold, approved by the Court of Appeal in Carter -v- Credit Change Ltd [1979] ICR 908, 918F per Lord Justice Stephenson.[15]In support of the appeal generally Mr Parker refers to the EAT decision in Smith -v- Alsecure Guards Ltd (Mr Justice Neill presiding 1 December 1982, EAT/264-5/82 Unreported). I have been referred, in the bundle of documents (page 13) to an extract from a Handbook on Employment Tribunal Practice and Procedure. There is commentary there on what I take to be the case of Smith, although the name of the case has been wholly obliterated from the copy. I have obtained the transcript.[16]It appears that the Applicant, Mr Smith, was represented by the Liverpool Welfare Rights Advice Centre, a free representation organisation, in connection with his case proceeding before the Manchester Tribunal. He applied for the case to be transferred to Liverpool for the convenience of his representative and four potential witnesses. That application was refused by the Manchester Tribunal Regional Chairman. An appeal against that determination was allowed.[17]Mr Justice Neill emphasised that it will be rare for the EAT to interfere with the Regional Chairman's exercise of discretion in a case such as this; however the EAT concluded that there were particular circumstances in that case which justified that step.[18]I express no view on the correctness of that decision as a matter of law. However, the case is plainly distinguishable. The EAT was impressed by the need, in justice, for the Applicant to be represented. That could only be done through the good offices of a free representation service.[19]In the present case Euro Lawline is, so far as I am aware, a commercial organisation. I do not follow what is said in the Notice of Appeal and Skeleton Argument; that:
"our practice have provided the Appellant with an indemnity against legal fees."
What legal fees? Further, Euro Lawlines's notepaper contains a list of persons with legal qualifications, including a non-practising barrister, apart from Mr Parker. It is not explained why another member of the firm could not take this case.[20]Finally, this is not an application for transfer, it is a case of a newly-appointed representative asking for an adjournment because the date already fixed by agreement between the parties is not convenient for his diary.[21]In my judgment, taking that factor into account, together with the need to ensure fairness to the Applicant, who advanced cogent reasons for her objection to a postponement, and the overriding objective (Regulation 10 of the 2001 Regulations) which includes ensuring that cases are dealt with expeditiously and fairly, the original refusal by the Chairman fell within the proper exercise of his broad discretion.[22]Finally, Article 6(3)(c) of the Convention. Article 6(3) is concerned with criminal cases; that does not extend to Employment Tribunal proceedings. Similarly, I derive no assistance from the Court of Appeal decision in D'Souza -v- Housing Corporation (unreported 11 June 1985) which is concerned with a Tribunal's refusal to allow a party to dispense with the services of his legal representative.[23]For all these reasons this appeal is dismissed.