Appeal No. UKEAT/0098/13/LA
UKEAT/0099/13/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

		At the Tribunal
		On 11 September 2013

Before
HIS HONOUR JUDGE DAVID RICHARDSON 
(SITTING ALONE)

BRIGHOUSE GROUP HOLDINGS LTD	APPELLANT

MR S BOURNE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS EMILY GORDON-WALKER
(of Counsel)
Instructed by:
Thomas Mansfield Solicitors
35 Artillery Lane
London 
E1 7LP	
For the Respondent	MS AMY STROUD
(of Counsel)
Instructed by:
Lyons Davison Solicitors
Victoria House
51 Victoria Street
Bristol 
BS1 6AD	

SUMMARY
PRACTICE AND PROCEDURE – Postponement or stay

The Appellant’s solicitors made an application for an adjournment of a hearing on the grounds that the Appellant’s managing director was unable to attend by reason of a business commitment: no details of the commitment were given.  The day prior to the hearing an Employment Judge refused the application, expressly stating that the application could be renewed if appropriate at the hearing.  The Appellant did not attend the hearing, which proceeded in the Appellant’s absence.  It was argued that the Employment Judge erred in law in refusing the application and that the hearing ought in any event to have been adjourned.  Held: appeal dismissed.  The Employment Judge when refusing the application for an adjournment applied the correct legal test; and there was no error in proceeding with the hearing the following day.  Transport for London v O’Cathail [2013] ICR 614 applied.

HIS HONOUR JUDGE DAVID RICHARDSON

1.	I have before me today two appeals by Brighouse Group Holdings Ltd (“BGH”) in respect of proceedings brought against it in the Birmingham Employment Tribunal by Mr Steven Bourne.  The first appeal concerns a decision by Employment Judge Findlay, communicated during the morning of 8 November 2012, to refuse BGH’s application to adjourn a hearing due to start the following morning.  The second concerns the decision of Employment Judge Walker on 9 November 2012 to hear the case as listed in the absence of any representative from BGH.  

The background
2.	BGH is one of a group of companies under the ultimate control of Mr Russ Brighouse.  Mr Bourne was employed within that group of companies as commercial director from 18 September 2005 under a contract which entitled him to six months’ notice.  His employment came to an end in February 2012.  He brought claims for breach of contract of employment, in that he received no notice or notice pay, and unfair dismissal.  There was an issue as to the identity of the company within the group by which Mr Bourne was employed at the time of termination of his employment.  A pre-hearing review took place on 24 September 2012 to determine this issue.  For reasons set out in a judgment dated 26 September 2012 Employment Judge Findlay determined that Mr Bourne was employed by BGH.  The case accordingly continued against BGH.  It was dismissed against other companies in the group.

3.	Mr Brighouse himself represented the companies on 24 September 2012.  He had not at this stage instructed solicitors.  The Employment Judge wished to list the hearing of the claim.  Mr Bourne’s counsel had her dates to avoid.  Mr Brighouse had not brought his diary and evidently had no-one who could check it for him.  The Employment Judge fixed the date for 9 November 2012, but said that Mr Brighouse could inform the Tribunal by 1 October if this date was not possible.  Thus the Employment Judge’s order, dated 26 September 2012, read as follows:

“Save that the parties may inform the Tribunal if the listed date of 9 November 2012 is not possible by 4.30pm on 1 October 2012 as Mr Brighouse was unable to confirm whether he was available on that date, no postponement will be allowed on the application of a party save in exceptional circumstances.” 

4.	Mr Brighouse did not write to the Tribunal by 1 October.  It appears that he first instructed solicitors on 4 October.  They wrote a long letter to the Tribunal on 9 October seeking both a postponement of the hearing in November and a review of the judgment.  As regards postponement the grounds were simply:

“Our client is not available on 9 November 2012 by reason of prior and unavoidable business commitments.  The Respondent’s representative also is not available on 9 November 2012 as has prior Employment Tribunal commitments.  We understand that the hearing was listed on 9 November on the basis of the limited availability of the Respondent’s representative.  As such, we should be grateful if the Employment Tribunal would take the availability of the Respondent’s representative into account.” 

5.	There followed a list of non-available dates which would have made it very difficult for the Tribunal to list the case again in the near future even assuming that the Tribunal and Mr Bourne had the availability as well.  There then followed three pages of detailed argument in support of the application for review.  

6.	Correspondence of this kind inevitably causes difficulty for Employment Tribunals.  It has to be placed on file and put before an Employment Judge as box work.  In this case because the letter concerned an application for review it had to go to the same Employment Judge.  Even assuming that an Employment Judge is not on leave or on a course, he or she has to find time in the course of a busy schedule to deal with it as a piece of box work. In this case Employment Judge Findlay had sent out the written reasons for her judgment on 12 October.  She dealt with the letter dated 9 October by a letter dated 24 October.  She asked the Respondent if it wished to pursue the review and the Claimant for comments on the postponement application.  In fact, although the letter had evidently not reached the file, Mr Bourne’s solicitors had already written on 17 October opposing the application.  BGH’s solicitors replied in another long letter dated 2 November making further submissions in support of the application for a review.  

7.	The Employment Judge considered this correspondence and caused a letter to be written which is dated 8 November and which, as I have said, was received by BGH’s solicitors on the morning of that date.  She refused the application for a review and for postponement.  So far as postponement is concerned, she gave the following reasons, having cited the correspondence which she had taken into account:

“At the hearing on 24 September Mr Brighouse, who represented all of the Respondents, did not have his availability to hand and was apparently unable to obtain it.  So I directed that should the date of 9 November not be possible he should inform the Tribunal at 4.30pm on 1 October, one week later.  He did not do so.  It is not clear exactly why Mr Brighouse is now not available or when the commitments referred to were entered into or what they are.  Nor is it clear why the fourth Respondent’s solicitor, if unavailable, cannot pass the matter to someone else at his firm or to Counsel.  Taking account of the overriding objective, I do not consider it just to postpone the hearing in those circumstances.  The application can, if appropriate, be renewed at the hearing on 9 November.” 

8.	BGH’s solicitors wrote a further letter, dated 8 November, to the Tribunal saying only that the prior engagements concern: 

“business meetings with various parties, which our client has arranged for some time and which he has not been able to rearrange because of a number of other parties involved.”  

The letter did not expressly renew the application for an adjournment.  

9.	On 9 November 2012 the hearing took place in Birmingham before Employment Judge Dawson.  BGH’s solicitors did not instruct anyone to attend the hearing to renew the application and give full details of the reason for an adjournment.  The hearing proceeded.  In his reasons the Employment Judge set out the procedural background, noted that the application had not been renewed and said that he had therefore not considered any application for an adjournment.  

10.	No complaint is made of any error of law in the judgment of the Employment Judge.  I can therefore summarise the result briefly.  The Employment Judge upheld claims of breach of contract, unfair dismissal, unauthorised deduction from wages, and the breach of the Working Time Regulations in respect of holiday pay.  The total award was £69,706.10.  

11.	I should finally record that the Respondent made an application to Employment Judge Dawson for a review.  This took place on 19 March 2013.  BGH was represented by counsel.  Mr Brighouse himself attended.  An important part of the application rested on Mr Brighouse’s non-attendance on 9 November.  No further details had been forthcoming of the nature of the business meeting which apparently prevented Mr Brighouse from attending the Tribunal.  Employment Judge Dawson invited counsel for BGH to call Mr Brighouse to give evidence to expand on those reasons if he wished to do so.  His counsel declined to do so, a matter about which the Employment Judge expressed surprise.  He found that Mr Brighouse chose to prioritise a work meeting over the Employment Tribunal and had no legitimate complaint about the Tribunal proceeding in his absence.  He granted a review on a minor issue relating to compensation and made a modest reduction in the overall monetary award.

Submissions
12.	On behalf of BGH Ms Gordon-Walker first attacks the reasoning of Employment Judge Findlay.  She recognises that the Employment Judge had a wide discretion in respect of a case management matter such as the granting or refusing of an adjournment.  She submits, however, that the Employment Judge gave inadequate reasons and failed to take into account factors which it was essential to consider.  She refers to the following: 
(1)	The Tribunal’s delay in dealing with the application
(2)	The fact that a fair trial would have been possible if an adjournment had been granted
(3)	The lack of any prior request for an adjournment 
(4)	The fact that BGH had not been legally represented at the Pre-Hearing Review
(5)	The fact that the date had been fixed for the availability of Mr Bourne’s counsel

13.	Ms Gordon-Walker also criticises the decision of Employment Judge Dawson to proceed with the hearing.  She submits that he was perverse not to consider an adjournment in circumstances where it must have been plain that BGH wished the case to be adjourned.  She submitted that it was incumbent on the Employment Tribunal to consider adjournment in any event (see Beswick Paper v Britton UKEAT/0104/09 at paragraph 28).  Further, or alternatively the question of remedy should have been adjourned.  She points out that BGH was placed in a worse position than if it had failed to submit a response or the response had been struck out (see D&H Travel and Henderson v Foster [2006] ICR 1537).  

14.	On behalf of Mr Bourne Ms Amy Stroud submitted that there was no error of law in Employment Judge Findlay’s reasoning and that, in the absence of any application or any real fresh information, Employment Judge Dawson could not be criticised for proceeding with the case.  She argued that Employment Judge Findlay took account of the timing of the application and its closeness to the hearing.  She submitted that until and unless the application was granted BGH and its solicitors had provisionally to be prepared for the hearing to go ahead.  She said that this was not a case like Beswick Paper.  In this case an application had been made and refused.  It was incumbent, if it was to be renewed, for this to be done expressly and at the hearing.  

15.	Both counsel took me to the main authorities on the question of adjournment including Carter v  Credit Change Ltd [1979] ICR 908, Teinaz v London Borough of Wandsworth [2002] ICR 1471 and Transport for London v O’Cathail [2013] ICR 614.  

Discussion and conclusions
16.	In December 2012, Employment Tribunal procedure was governed by the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 and by the Employment Tribunal Rules of Procedure in Schedule 1 to those Regulations.  The overriding objective (Regulation 3 of the Regulations) provided as follows:  

“3.—(1) The overriding objective of these regulations and the rules in Schedules 1, 2, 3, 4 and 5 is to enable tribunals and chairmen to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable: —
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that it is dealt with expeditiously and fairly; and
(d) saving expense.
(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he: —
(a) exercises any power given to it or him by these regulations or the rules in Schedules 1, 2,3, 4 and 5; or
(b) interprets these regulations or any rule in Schedules 1, 2, 3, 4 and 5.
(4) The parties shall assist the tribunal or the chairman to further the overriding objective.”

17.	It was therefore incumbent on Employment Judge Findlay, in considering whether to exercise her undoubted power to grant or refuse an adjournment, to apply the overriding objective.  This she did, as her reasons make clear.  Accordingly she applied the correct legal test.  

18.	In O’Cathail Mummery LJ said this, at paragraph 44:

“In relation to case management the ET has exceptionally wide powers of managing cases brought by and against parties who are often without the benefit of legal representation. The ET's decisions can only be questioned for error of law. A question of law only arises in relation to their exercise, when there is an error of legal principle in the approach or perversity in the outcome. That is the approach, including failing to take account of a relevant matter or taking account of an irrelevant one, which the EAT should continue to adopt...”

Paragraph 45:

“Overall fairness to both parties is always the overriding objective. The assessment of fairness must be made in the round. It is not necessarily pre-determined by the situation of one of the parties, such as the potentially absent claimant who is denied an adjournment.”

Then paragraph 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:

“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.