Appeal No. EAT/191/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11th March 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR K HACK JP

	MR E HAMMOND OBE

DALEHEAD FOODS LTD	APPELLANTS

MRS D APPLETON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY OR
ON BEHALF OF THE APPELLANTS

For the Respondent	NO APPEARANCE BY OR
ON BEHALF OF THE RESPONDENT

	MR JUSTICE WOOD (PRESIDENT):  In this case Mrs Appleton brought proceedings against her employers, Dalehead Foods Limited for unfair dismissal.  

	The hearing of the liability issue took place before an Industrial Tribunal in Manchester on Friday the 29th January 1993.

	The Remedies hearing has been fixed for tomorrow, the 12th March.

	The Applicant was represented by her trade union, and the respondent Company by Mr Curl, a member of Professional Personnel Consultants Limited.  

	At the end of the hearing on Friday 29th January, it was clear that a date had to be fixed for the hearing of the Remedies issue.  Two letters of the 1st February, that is the following Monday, crossed in the post.  The first was a short letter from the Tribunal Secretary saying:
		"I write to confirm that the above case was adjourned on Friday 29 January 1993, for a Remedy Only hearing, to Friday 12 March 1993 at 9.45 am.  This date being agreed with all parties."

The letter of the 1st February from Mr Curl which crossed with it said:
		"We have been advised by our Mr K A Curl that at the conclusion of the Hearing on Friday 29th January 1993, a further Hearing was schedule for remedy and that two dates were provisionally proposed - 2nd and 12th March 1993.  We understand that Mr Curl explained at the time that he was unable to confirm either date without checking prior commitments.

		Unfortunately, both 2nd and 12th March 1993 are not available and we would ask that an alternative date be set.

		We would like to advise that Mr Curl will available in March on the following dates:

		Monday 15th
		Tuesday 16th
		Monday 22nd to Friday 26th inclusive and
		Monday 29th to Wednesday 31st inclusive."

The Tribunal reply with a letter of the 4th February saying:
		"I write to inform you that the date for the resumed hearing to deal with remedy was agreed . . . and the Tribunal never agreed to this date being provisional. . . .

		I write and inform you that your letter dated 1 February 1993 requesting another date for the resumed hearing is refused."

He replies to that on the 8th February 1993 saying:
		"Your first letter dated 1st February 1993 crossed with mine and contained the 12th March 1993 "agreed" date for the hearing.  I repeat it was not an agreed date, it was subject to availability."

Then, ultimately on the 11th February it is stated quite clearly:
		"12th March 1993 was not a provisional date, therefore, your request for an alternative date is refused"

He then lodges an appeal to this Appeal Tribunal and both sides have asked that the appeal be heard on documents alone, neither side appearing.

	The Trade Union officer acting for Mrs Appleton has written saying that the date was a "fixed date" and there the issue stands.

	I have rung up the learned Regional Chairman and I understand that the practice in his Region is that provisional dates are never fixed after a liability hearing, but that dates are discussed an adjournment, if necessary, taken there and then so that representatives can ring their offices for confirmation of the relevant dates.

	The only basis upon which an appeal to this Tribunal could be effective where one is dealing with a judicial discretion is where there is a breach of the Wednesbury rules, either that the learned Chairman took into account something that should not have been taken into account;  or failed to take something into account that should have been taken into account;  or that the decision was just plainly wrong. 

	The issue here between the employers' representative and the Tribunal is really an issue of fact and we can see no issue of law here.  The issue of fact has been decided by the Chairman and the representative for the Applicant, and presumably by the Lay Members who were sitting on this Industrial Tribunal.  The view has been expressed to me by some of the Lay Members here that it is most unfortunate that this should have occurred, but we do not know the full facts and no doubt, the learned Chairman as a matter of practice, would have made a note in the notebook on the day of the hearing that the day for the Remedy, the 12th March had been agreed and fixed.  If that note was clear in the notebook that would be an end of the matter but let us, in the present circumstances, deal with these facts as they are presented to us applying those facts, and indeed, applying the law, we can find no reason to disturb the exercise of the discretion and this hearing will take place tomorrow as fixed.

	This appeal is dismissed.