Appeal No. EAT/1123/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 September 1997

Before
HIS HONOUR JUDGE J HICKS QC
MR D J JENKINS MBE
MRS J M MATTHIAS

JENBACHER HOLDINGS (UK) PLC	APPELLANTS

MR D WILLIAMS	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellants	MR JEREMY LEWIS
(of Counsel)
Messrs Fladgate Fielder
Solicitors
Heron Place
3 George Street
London
W1H 6AD	
For the Respondent	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE RESPONDENT	

	JUDGE J HICKS QC:     Mr Williams, the Respondent to this appeal, was employed by the Appellants, Jenbacher Holdings (UK) Plc and brought a complaint to the Industrial Tribunal on a number of grounds, as a result of which on 7 July 1997 a hearing date was fixed for 29 September, today.  The dismissal occurred some time before that and the delay until July this year seems to have been caused by Mr Williams’ ill health, which was of course his misfortune, but certainly not the fault of the employers.

	Immediately after the fixing of that date, which was for a six-day hearing, the employers applied for a postponement, because the six days would cover the Jewish New Year and Counsel, who had already advised and was expected to be briefed, as well as a senior Solicitor, were both Jewish.  That was refused by a Chairman on 10 July.  The employer’s Solicitors wrote again on the 14th reserving the right to renew the application later, should it be necessary to do so, and the Tribunal, treating that as being a renewed application, referred it to the Chairman who again refused the postponement, and there matters stood until 23 September.

	Meanwhile, at some date unknown to us and no doubt as a result of negotiations which extended over some period, the parties had resolved a number of the issues between them and had agreed that the length of the hearing would be a day, or perhaps part of a second, but certainly no more than that.  That, no doubt, was the reason why the employer’s representatives took no further steps about the difficulty of the Jewish New Year, because they would still be able to dispose of the matter before its onset if the hearing started on 29 September.  It does not appear that the Tribunal was told about that until on 23 September the Applicant, who in addition to the misfortune earlier of his ill-health had now suffered a further blow in the death of his brother, wrote applying for that reason for a postponement on compassionate grounds.  In the letter of application his Solicitors did inform the Tribunal that the hearing was unlikely to take much more than a day.

	The Chairman of the Industrial Tribunal then, without consulting the Respondent employers, directed that the hearing start on 2 October.  It seems, looking at the matter by hindsight, as if there was an unfortunate lack of communication or of recollection in that decision, because while, absent the problem about the Jewish New Year, there was an obvious convenience in being able to fix dates which were already free, as the result of having been allowed for in the original estimate of six days, the Industrial Tribunal Chairman seems not to have recalled the objection of the Respondents to hearings on 2 and 3 October and not to have appreciated that the reduction in the estimated length of the case was no doubt the reason why nothing further had been done about original objection.

	On the same day, 23 September, that the Applicant’s application for a postponement had been made and the decision of the Tribunal Chairman to postpone to Thursday 2 October reached, on that same day the employer’s Solicitors, having learned of the decision, wrote to the Regional Secretary drawing attention to the importance of 2 and 3 October as important Jewish holidays and asking for a review of the direction for the hearing to proceed on 2 and 3 October.

	On 24 September the Tribunal Chairman, in effect, refused to review the decision and directed that the hearing remain listed for 2 and 3 October.  On 25 September the employer’s Solicitors wrote making a fresh application for consideration of further points.  It is not clear whether it is expressed as an application for a further review or as a completely fresh application for postponement, but in either event it set out the case for the postponement in regard not only to their position and that of Counsel in regard to the Jewish New Year, but also to the fact that a postponement of only three days would not very adequately meet the Applicant’s problems of his state of mind following the death of his brother, and in support of that application they enclosed a letter from the Applicant’s Solicitors making that point, albeit perhaps making it not as strongly as might have been done.  It is put in this way, “that Mr Williams does not feel able to attend a hearing on Tuesday and Wednesday of next week” (that would be 30 and 1 October) and indeed “would prefer it in his present state of mind if the hearing could be postponed a little further”.  That application, whether it is to be treated as a fresh application for adjournment or an application for a further review, was again refused and it is that refusal which is now appealed to us.  The grounds are set out in a letter from the Industrial Tribunal of 25 September as follows:

“No postponement.  The case has been listed since 7 July 1997 on dates notified as convenient by both parties.
It is not in the interests of justice that cases should drag on and on particularly when disputes of fact may exist and time lapse can cloud memory.  The applicant was dismissed over a year ago and any further delay is simply not acceptable.”

	That decision is attacked by Mr Lewis, for the Appellants, on a number of grounds, and he has also produced to us a copy of a further letter from the Applicant’s Solicitors, which puts much more strongly the Applicant’s support, and indeed says that Mr Williams does not feel in any condition emotionally to undertake the hearing on Thursday and Friday, that is 2 and 3 October, which I should add, and as appears from the documents throughout from 23 September onwards, Mr Williams proposes to conduct himself, so it is not just a matter of his giving evidence, but of having to conduct the whole of his case.

	Mr Lewis submits that, although this is a discretionary decision, the Chairman did err in law in failing to take account of important relevant considerations.  First, that there was and had been from the outset an objection to a hearing which went over the Jewish New Year.  As I have said, it is probably unfortunate that the significance of that in conjunction with the shortening of the trial length was not brought to the Chairman’s attention, because it is understandable perhaps that it escaped his mind that the reason why the original objection to the Jewish New Year had not been persisted in or appealed, was not that the employers were in a position to conduct a hearing going over those dates but that, as the Chairman now knew by the letter of 23 September, the hearing would not, starting on 29 September, have reached those dates and it does seem to us, therefore, that the Chairman did fail to take that consideration into account.  As we have said, that was not probably through any personal dereliction of duty on his part, but nevertheless it was in the events which had happened, seen as a whole, a highly relevant fact.

	Secondly, Mr Lewis submits that in giving weight - on the face of it very great weight, preponderant weight - to the interests of justice in not allowing cases to drag on, the Chairman failed to take account of the following matters.  First, that a long adjournment would not be necessary since hearings are being listed, the Appellants are told, for November, and that presumably is something the Chairman either would have well in mind or could easily ascertain.  Secondly, that his reference to memories clouding over was not only much reduced by the shortness of any necessary adjournment, but also by the fact that there was to be no oral evidence in chief, because he had directed and the parties had accepted that evidence in chief should be entirely by witness statements, which had already been exchanged.

	Thirdly, there is no indication in the Chairman’s reasons that he had taken into account the fact that the application was effectively a joint application by both parties.  We do not, of course, suppose that that means that the matter was absent from the Chairman’s mind.  It would be quite wrong to require Industrial Tribunals, when giving reasons in the circumstances like this, to set out every obvious fact that was known to them and must, in common-sense, have been taken into account.  But the fact that it is not mentioned is perhaps some indication that no particular weight was given to it.  

	Those are the matters of any significance which Mr Lewis submits to us the Chairman failed to take into account.  He does not submit, and we do not think he could submit, that the matters which the Chairman did refer to are matters which it was wrong to take into account, so we are left with those matters which the Chairman, on the face of it, failed to take into account and we regard this on that element as something of a borderline case, but we think that there is enough in those to enable us to say that in failing to take those matters into account the Chairman erred in law.  

	However, the alternative ground for appeal is one of perversity, that this was a decision which no Industrial Tribunal, properly directing itself as to the law and properly taking into account all the relevant facts, could have reached and we are satisfied that this is such a case.  It is, in our view, really a situation where any Industrial Tribunal, faced with the combination of facts which I have recited, could properly have come only to one view, namely that the application should be allowed.

	Since we uphold the appeal on the ground of perversity, as well as on the ground of error of law, therefore, it follows inevitably that our view about the exercise of our own discretion must be that the application should be granted, and we would have reached that decision, in any event, even without the further support given by the latest letter of the Applicant’s Solicitors.  

	The appeal is therefore allowed and the hearing fixed for 2 October postponed.