Brighouse Group Holdings Ltd v Bourne (Practice and Procedure : Postponement or stay) [2013] UKEAT 0098_13_1109
EAT
Brighouse Group Holdings Ltd v Bourne (Practice and Procedure : Postponement or stay)
[2013] UKEAT 0098_13_1109 · 2013-09-11
[46]“ What is fair in the interests of the parties is, in the first instance, a matter for assessment by the ET. The EAT ought only to intervene if the ET has erred in principle or produced a perverse outcome in the sense that no reasonable tribunal could have concluded that it was fair in all the circumstances to refuse the adjournment. ”19. The reference by Mummery LJ to “failing to take account of a relevant matter or taking account of an irrelevant one” does not meant that the Employment Appeal Tribunal is entitled, in reaching its decision, to weigh for itself the factors applicable to an exercise of a discretion. It means only that an Employment Tribunal must not leave out of account a factor which it was essential for it to take into account and that it must not take into account that which is logically or legally irrelevant.20. The reasons given by Employment Judges for their decisions in matter of case management are not expected to be lengthy. It is not necessary for an Employment Judge’s reasons to spell out every potentially relevant consideration. This has always been the case. I note that the new Employment Tribunal Rules of Procedure expressly say that:
“The reasons given for any decision should be proportionate to the significance of the decision and for decisions other than Judgments may be very short.”
This encapsulates in a few words what has always been the position. 21. To my mind the key question is whether the Employment Judge took into account the lapse of time since the application was made and the shortness of time until the hearing. This was the salient feature of the case before her along with the obvious failure of BGH’s solicitors to give any real degree of detail about BGH’s difficulty. It would have been quite routine for the Employment Judge to have refused the application for an adjournment if the refusal had been shortly after the application was made. But the lateness of dealing with the application had the potential to cause difficulty to both sides. Quite apart from the position of BGH, Mr Bourne had himself briefed counsel and expended time and money on preparing for the case. 22. I consider that the Employment Judge plainly did take this factor into account. It is apparent from the Employment Judge’s reasons that she had the date of the application for an adjournment well in mind. She referred expressly to the letter dated 9 October. It is also apparent that she was well aware that the hearing was on 9 November. In my judgment it is also apparent from the solution that she adopted. She expressly left open the possibility that the application might be renewed at the start of the hearing, no doubt expecting that it would be renewed on better information if in reality Mr Brighouse was unable to attend. I do not accept that she left out of account what Ms Gordon-Walker described as the Tribunal’s delay. The Employment Judge was attempting, in the circumstances in which she found herself, to fashion a course which was fair to both parties. Simply to have adjourned might have been very unfair to Mr Bourne if there was in reality no good reason why Mr Brighouse could not attend. If he really could not attend it was certainly not too late for experienced employment solicitors such as BGH’s solicitors to arrange representation at the hearing so that there could be given what should have been given at the outset, namely full and proper details of the reason why Mr Brighouse could not attend so that the matter could be considered in a way which was fair to both parties. 23. I have concluded that the Employment Judge had this factor properly in mind, did her best to fashion a solution in the circumstances and committed no error of law in what she did. 24. On the question of delay in dealing with the application, I would observe that the problem arose from a combination of factors including not only the time taken by the Employment Tribunal to deal with box work, but also the following. (1) The failure of Mr Brighouse, never explained, to inform the Tribunal of any problem by 1 October; and (2) The failure of BGH to give details of the reason why Mr Brighouse could not attend, details which were plainly required if an adjournment was to be sought after 1 October since the Tribunal had made it plain that something exceptional would then be needed to justify an adjournment; and (3) The combination of an application for an adjournment with a lengthy application for review. 25. But whatever the reason for the delay, the Employment Judge had to decide the matter in a way which was fair to both sides, and I see no basis for saying that the decision is vitiated in law. I have looked at Ms Gordon-Walker’s submissions individually and in the round. I am satisfied that the Employment Judge applied the correct legal test and took into account what really mattered. I do not think she failed to take anything of significance into account or had regard to anything improper. 26. I turn then to the decision of Employment Judge Dawson to proceed with the case when BGH failed to attend the following day either by a representative or by Mr Brighouse. I have reached the conclusion that there was no error of law in his decision to do so. It is true that he had the letter dated 8 November; but this in reality gave no information beyond that which was before Employment Judge Findlay. The letter did not make an application for adjournment, nor had anyone attended despite the plain invitation of Employment Judge Findlay to renew the application if appropriate. To my mind Employment Judge Dawson was entitled to proceed in the absence of a party (see rule 27(5) of the 2004 Employment Tribunal Rules of Procedure). Indeed to my mind he was plainly right in the circumstances to do so. 27. In Beswick Paper the circumstances were very different to this case. The party in question had diarised the date incorrectly and informed the Tribunal when the Tribunal contacted the person in question on the day. It was in those circumstances that His Honour Judge Peter Clark said the following:[28]“ We readily acknowledge that in a case where a party, without explanation, has simply failed to attend, an employment tribunal will normally be justified in proceeding with the hearing. However, where an explanation for the non-appearance has been given and no advice about requesting an adjournment is proffered, we think that the employment tribunal is bound to consider the balancing interests of the parties and whether an adjournment, on terms as to costs (including, as here, the wasted attendance costs) ought to be ordered. ” 28. In this case, unlike in Beswick Paper , BGH was represented. An adjournment had been refused. There was ample opportunity for advice about an adjournment. The Employment Judge had invited the renewal of an application for an adjournment. No renewal application had been made either in correspondence or at the hearing. I see no reason why Employment Judge Findlay erred in law in proceeding with the case in those circumstances. 29. I would add one final point. There was always the possibility of an application for review if there was good reason for the absence of Mr Beswick. That is the obvious remedy if there was injustice to BGH by reason of non-attendance. As I have pointed out, a review application was indeed heard but foundered when Mr Brighouse gave no evidence or explanation beyond that which had already been provided. I share the surprise of Employment Judge Dawson that this was his position. 30. For these reasons the appeal will be dismissed.