Appeal No.	 EAT/260/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 March 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR R SANDERSON OBE
MR T C THOMAS CBE

THE LONDON BOROUGH OF HAMMERSMITH & FULHAM	APPELLANTS

MR S D WINSTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellants	MS K TICKNER
Solicitor
Policy & Administration Dept
Legal Services Division
London Boroough of Hammersmith & Fulham
Town Hall
King Street
London W6 9JU	
For the Respondent	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE RESPONDENT	

	JUDGE PETER CLARK:     By an Originating Application presented on 13 March 1998 the Applicant, Mr Winston, brought complaints of unfair constructive dismissal and racial discrimination against the Respondent Council, by whom he was employed from October 1979 until 15 December 1997.  The claims are resisted.

	There have been a number of postponements of the hearing of this case.

	First a hearing fixed for the 3 - 4 August 1998 was adjourned, by consent, on the Applicant’s application because a witness whom he wished to call was not available.  Next, a hearing fixed for 21 - 22 September 1998 was adjourned on the Applicant’s request without reference to the Respondent.  Thirdly, a hearing fixed for 3 - 4 December 1998 was adjourned, despite opposition by the Respondent, following an application made by the Applicant on 2 December.  He said that he was unwell and supported his application with a medical certificate.

	On 18 December 1998 the Respondent applied for a preliminary hearing in the case, which application was refused.  The Respondent then applied for postponement of the hearing fixed for 16 - 19 February 1999 on the grounds that their principal witness, Ms Hudson, was due to go on maternity leave in February. and indeed was expected to give birth at about the time that the hearing was fixed for.  In letters dated 29 December 1998 and 6 January 1999 the Tribunal was invited to postpone the hearing until mid-June, when Ms Hudson’s maternity leave had expired.  The request for a postponement of the February hearing was granted by letter dated 26 January 1999.  However, the Chairman proposed that the case be re-listed in May, when he anticipated that Ms Hudson would be fully able to attend and give evidence.  A hearing date was then notified for 11 to 14 May.

	The Respondent sought a postponement of that hearing by letter dated 3 February 1999 on the ground that Ms Hudson would still be on maternity leave and the Respondent did not feel it would be right to seek to compel her to attend an Employment Tribunal hearing at a time when Parliament had provided for a fixed period of maternity leave to allow her to recover after the birth of her child.  The child was born on 22 February 1999.

	That application was refused by letter dated 5 February 199 which read as follows:

“1.  I refer to your recent request for a postponement of the hearing in this case.
2.  A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.
3.  The Chairman refuses your request for the following reason.
The fact that a proposed witness is on maternity leave is no bar to her attending an Employment Tribunal as a witness.  If Ms Hudson is unwilling to attend voluntarily, you may apply for a witness order.”

	We do not know what the Applicant’s attitude to a further postponement might be.  He has taken no part in these appeal proceedings and his views are not referred to in the Chairman’s decision letter of 5 February.

	We fully understand the Chairman’s desire to bring these proceedings to a head in view of the history.  Further, it is not for us simply to substitute our view for that of the Chairman.  An error of law must first be made out:  Carter v Credit Change Ltd [1979] ICR 908.

	Having looked at the history of the matter and the particular reason for postponement put forward by the Respondent on this occasion, we are driven to conclude that the Chairman’s insistence that the case be listed shortly before the end of Ms Hudson’s maternity leave, is a course to which no reasonable Chairman, properly directing himself, could properly come.  The delays in bringing this case to a hearing are principally caused by adjournments requested by the Applicant.  No consideration appears to have been given to the fact that Ms Hudson, the Respondent’s principal witness, will be on statutory maternity leave until the end of May.  In these circumstances, we can well understand that this Respondent and indeed, any reasonable employer would not wish to insist on her attendance before the Employment Tribunal for the full four days of the hearing, she being as we have said, the principal witness, such attendance to be compelled by means of a witness order.  Further, without her it is apparent that the Respondent would be seriously, if not fatally, disadvantaged in defending this claim.

	In these circumstances we shall set aside the Chairman’s order and direct that the hearing date of 11 - 14 May be vacated and the case re-listed for the next convenient 4 day period beginning on or after 1 June 1999.