Appeal No. EAT/225/92

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 3rd April 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MS S R CORBY

	MR A D SCOTT

FRIDAY AD PRINT LTD	APPELLANTS

MR D C E HUNTER	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A HIGGINS
(Of Counsel)
Messrs J M Rix & Kay
Solicitors
	116 High Street
	Uckfield
	East Sussex
	TN22 19H

For the Respondents	MISS I SIMLER
(Of Counsel)
Messrs Kershaws
Solicitors
32 Hans Road
Knightsbridge
LONDON
SW3 1RP

	MR JUSTICE KNOX:  An application is made to us at the outset of this appeal by the Appellant, the employer in the case, Friday-Ad Print Limited which I will call "the Company".  The application is for an adjournment and for leave to amend the Notice of Appeal and for the Chairman's notes to be requested.

	The decision appealed from is one made by the Industrial Tribunal sitting at Brighton on the 9th March of this year, which was sent to the parties on the 20th of that month, and that decision was that the Applicant, the Respondent before us Mr Hunter, was unfairly dismissed by the Company and that the Tribunal ordered his re-instatement.  That of course is under Section 69 of the Employment Protection (Consolidation) Act 1978.  

	The application, as I have said, is for an adjournment in the hearing of the appeal.  It is plain that the appeal is very well within the time limited for appeals, since we are today only the 3rd April and the appeal in fact was, in its original form, dated the 24th March which, we are told, was the day after the decision of the Industrial Tribunal was received, and certainly was only four days after it was sent, so that there is no question of delay on the part of the Company.  

	The question of whether or not we should grant the adjournment and ask for the Chairman's notes really hinges, as was accepted in argument, on whether or not the grounds upon which the Chairman's notes are requested are incapable of succeeding, in other words, whether the appeal on those aspects is a hopeless one.  Because we have reached the conclusion that it does not fall into that category so that the appeal will have to be heard, it would be inappropriate for us to go into the details of why we have reached our conclusion because that would only cloud the issue when the matter does come for appeal before this Tribunal.

	The decision for re-instatement was that it should be on the 30th March, which now has obviously already passed, and it is therefore desirable and it is indeed the policy of this Tribunal, that appeals in such matters as re-instatement on a fixed date should be given a high degree of priority in the listing which this Tribunal does of its pending appeals.  We are not therefore, we hope, contemplating a very lengthy postponement of the full hearing of the appeal.  But unless we were satisfied that the grounds of appeal were absolutely hopeless and stood no chance of success at all, it would not in our view be right to shut the Appellant Company out from seeking to have its appeal heard on the grounds advanced by it.  Certain it is that unless they had the Chairman's notes the grounds on which they seek to appeal would necessarily fail because those grounds are substantially, if not exclusively, perversity, and an appeal on grounds of perversity without the Chairman's notes is a virtual impossibility.

	We therefore do grant the adjournment and we do propose to ask the Chairman to supply his Notes of Evidence.  We have considered whether we should limit it to the specific issues that were identified but there was only one day's hearing and it would, in our view, probably cause more trouble than it was worth to try to limit the area of the notes for the Chairman to cover.

	The second point that was argued before us was whether we should extend, as no one suggests that we have not the power to do, the date which the Industrial Tribunal gave for the re-instatement to take effect.  As I have already said that was the 30th March.  We have come to the conclusion that we should not do that because it would serve no useful purpose for the Appellant Company and might prejudice the Respondent, Mr Hunter.  We say that it would not help the Company because either it is going to succeed in the appeal or it is not.  If it succeeds in the appeal no harm will be done because the order for re-instatement will disappear.  If it fails in the appeal, the order for re-instatement should not be disturbed, so that although it fears, no doubt understandably, that it may be liable at the end of the day under Section 71(2)(b) for what is called an additional award of compensation, that fear will either prove to have been unnecessary because they succeed in setting aside the order, or it will prove to have been entirely justifiable and one which they should not be relieved from, namely that they do find themselves within that situation of having failed to re-instate when they should have done.  There might be a prejudice, we put it no higher than that, to Mr Hunter by moving the date because it is accepted that at the second stage when the Industrial Tribunal considers whether it was not practical to comply with the order, in the words of Section 71(2)(b) the date would, if we change it, have shifted and might introduce facts and events that would not have been introduced had we not shifted the date and potentially that might be to Mr Hunter's prejudice.  In those circumstances the balance of convenience seems to us in favour of leaving the date where it is and we refuse that application.

	*********

	We have an application for costs in relation to this hearing which has resulted, for reasons that I have given earlier, in an adjournment.  

	The effective nature of the proceedings today has been very similar to what would have happened had there been put into operation the preliminary procedure that is often used in this Tribunal for seeing whether an appeal is fit to go forward for a full hearing.  Had that happened of course the Respondents would not have been here and would not thereby incurred any costs.  We are satisfied that there has not been unreasonable conduct in conducting the proceedings by the Appellants in bringing about the state of affairs that obtains today.  It seems to us that it may be that the case has come on an inter partes basis rather earlier than it really was justifiable for it to do, but that is not anything that can be laid at the Appellant's door as we see it, and the only basis under Regulation 27(1) of the Statutory Instrument that governs our procedures that is arguable, as Miss Simler very properly accepted, is that there should have been shown other unreasonable conduct, other than unreasonable delay that is, in conducting the proceedings.  In those circumstances we do not propose to make an order for costs.