Appeal No. EAT/1182/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 May 1995

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MISS J W COLLERSON

	MR D J JENKINS MBE

WILLIAM HILL ORGANIZATION LTD	APPELLANTS

MR G BRYANT	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J N M JOLLY
Personnel Manager
William Hill Organization
5 Clifton House
Clifton Terrace
London N4 3JP

For the Respondent	MR T I ROE
Representative
Free Representation Unit
Room 140
49-51 Bedford Row
London WC1R 4LR

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal by the William Hill Organization Ltd against the unanimous decision of the Industrial Tribunal held at London (South) on 5 September 1994.  

	The Tribunal heard an application by a former relief manager employed by them, Mr Graham Bryant, for unfair dismissal.  In the extended reasons for the decision, notified to the parties on 9 November, the Tribunal explained why they reached the conclusion that Mr Bryant had been unfairly dismissed and why they awarded him the sum of £4,619 compensation.  The decision stated that the application made by William Hill Organization for a postponement of that hearing had been refused.  That part of the case is the most crucial aspect of this appeal, brought by William Hill by notice of appeal served on 15 December.  

	On the hearing of this appeal, Mr Jolly, the personnel manager, presented the appeal for William Hill and Mr Roe of the Free Representation Unit made submissions on behalf of Mr Bryant.

	The point on the appeal is whether the Industrial Tribunal erred in law in refusing to postpone the hearing to enable William Hill to call oral evidence from the area manager, Mr Price, who was on holiday at the time of the hearing. 

	It should be said at the outset that appealing against a refusal to postpone a hearing and establishing an error of law in the exercise of the discretion to postpone or adjourn cases is a difficult matter, for this reason, the jurisdiction of this Appeal Tribunal is confined to questions of law.  The Industrial Tribunal has a wide discretion to postpone and adjourn cases or to refuse to postpone and adjourn them.  When an appeal is brought against the exercise of a discretion, the power of this Tribunal to review the decision is limited.  As was stated by Mr Justice Phillips in an early case, Jacobs v Norsalta Ltd [1977] ICR 189:

		"... the power [to postpone and adjourn cases] must not be used arbitrarily or capriciously, and must certainly not be used ... to defeat the general object of the legislation.  But, subject to that, it seems to us that the industrial tribunal  has a complete discretion, so long as it exercises it judicially, to postpone or to adjourn any case provided there is a good, reasonable ground for so doing."

The same observation would apply to a refusal to postpone or adjourn a case.

	The background to this case is that the Industrial Tribunal notified William Hill of the date for the hearing, fixed for 5 September.  An application was made in writing on behalf of Mr Jolly, while he was on holiday, on 12 August, stating this:

		"I am writing to you because I have to advise you that my principal witness will not be available on this date, [5 September] or for the following two weeks.

		In the circumstances the Respondents request another date to be kindly fixed for the hearing of this matter, and make application to this effect."

	William Hill wrote another letter on 16 August, following a telephone conversation with Mrs Gulamali at the Regional Office of Industrial Tribunals, confirming the following:

		"1.	The witness Mr I Price is the Area Manager who following the security investigation and report, saw the Applicant on the matter and ultimately took the decision to dismiss him.

		2.	Mr I Price will be on annual leave for the period 3rd September 1994 - 18th September 1994 inclusive.

		As Mr I Price is the dismissing authority in this case, it is important that he is available to give evidence."

	On 19 August a letter was written on behalf of the Regional Secretary for Tribunals stating that:

		"The Chairman has considered [all the matters in the two letters] and has balanced that against the desirability of bringing this case to a hearing without delay.  Your request for a postponement is refused for the following reasons:

			The Chairman expects Respondents to ensure that their employees are at the hearing(s).  You may seek a witness order against prospective witnesses if you wish.

			The case must start on the date arranged.  If necessary an additional date can be fixed by the Tribunal at the hearing for you to call a particular witness.  It is likely that the case will be disposed of sooner by this course."

	William Hill made a further application by letter of 24 August, referring to the letter just read, stating this:

		"The Respondents at the outset take the view that every application made to an Industrial Tribunal is a serious matter, and spares no effort or expense to ensure that their witnesses are available to give evidence irrespective of the costs or disruption of their business.  They maintain that as always every assistance and co-operation is given to an Industrial Tribunal.

		However in this particular case the Respondents respectfully submit that:-

		1.	The principal witness of the Respondents will be on holiday on this date as stated in earlier correspondence.  This witness dismissed the Applicant because he entertained a reasonable suspicion amounting to a belief in the guilt of the Applicant.  To recall this witness to give evidence will not be without considerable inconvenience to the witness and his family.  It is not unlikely that such recall will not be without cancellation of the entire holiday.

		2.	The Industrial Tribunal on the evidence of the principal witness can only determine whether the Respondents acted reasonably or unreasonably in treating the reason for dismissal of the Applicant as a sufficient reason.

		3.	The interest of justice require such adjournment of the hearing date in order to save costs of both parties.

		4.	The hearing date fixed for the 6th September 1994, if the Industrial Tribunal so determines by way of adjournment will entail unnecessary cost.

		5.	There will be no hardship to the applicant if an adjournment is granted as the applicant has found alternative employment.

		We trust the Industrial Tribunal will give this application their further due consideration and let us hear at an early date."

	A letter was written on 2 September on behalf of the Regional Secretary stating that:

		"The Chairman to whom your letter was referred sees no reason to change the refusal of a postponement and has borne in mind the fact that the Applicant objects."

	The hearing started on 5 September.  According to the extended reasons, paragraph 2, Mr Jolly made an application at the start of the hearing on behalf of William Hill that the matter be adjourned to another date.  The Tribunal then set out the previous history of the matter, starting with notification of the date of the hearing on 10 August and referred to the correspondence.  They went on to say at paragraph 3, having noted that there had been an objection by the Applicant to a postponement:

		"Mr Jolly explained that Mr Price, the witness concerned, was on holiday in Scotland and the Lake District.  Mr Price's regional director had spoken to him about the clash of dates and Mr Price had said that he could only cancel his holiday but it would be difficult to arrange another holiday."

The Tribunal gave their reasons for refusing the application:

		"4.	... The Respondents had known of the Tribunal's refusal to grant a postponement for some time.  The principal witness could have been brought from his holiday for just the day;  he was not overseas but in Scotland and then in the Lake District.  Also, no reasons had been given as to why the regional director was not present to give evidence.  He had heard and dealt with the Applicant's appeal against the decision to dismiss.  In those circumstances, the Tribunal decided that the interests of justice required that the hearing should be proceeded with today."

	It appears from the paragraph 12 of the decision that the appeal against the decision to dismiss had been to Mr McGovern, the regional director for the Respondents, and he dismissed that appeal.  He was not called or present to give any evidence to the Tribunal.

	As noted in paragraph 5 of the decision, the Tribunal did not hear oral evidence from the Respondents.  Mr Jolly presented the case for them.  We understand that he was asked to go first.  The Tribunal did hear evidence from Mr Bryant.  They also looked at a bundle of documents put in by the Respondents, comprising 28 pages. 

	The Tribunal went on to find the facts.  They concluded that the reason for Mr Bryant's dismissal was a reason which fell within s.57(2) of the 1978 Act.  They explained the reasons as to why the dismissal was procedurally unfair within s.57(3).  There is no reference in the Tribunal's extended reasons to any other application for an adjournment by the Respondents during the course of or at the end of the hearing on that day.  

	The grounds of appeal against that decision in the notice of appeal concentrate on the exercise of the discretion to refuse an adjournment.  It is stated in the grounds in paragraph 5 of the notice of appeal that:  

		"Moreover it is a fundamental principle of the administration of justice that both parties are to be heard and that administrative convenience must not be allowed to infringe the fundamental principles.  Justice required that the application for an adjournment should have been allowed.

		The Tribunal erred in its application of the law and erroneously exercised their discretion in refusing the adjournment."

There is reference to a number of authorities and there are complaints about the conclusions of the Tribunal.

	The ground advanced on this appeal has concentrated on what is alleged to be an error of law in the refusal of an adjournment.

	No further details were given in the grounds of appeal or in a skeleton argument as to the particular complaint.  When we read the decision, it was our understanding of the events at the hearing on 5 September that only one application for an adjournment was made.  That was at the start of the hearing when it was refused.

	During the course of his submissions in support of this appeal, Mr Jolly has explained that at the end of the day, without having called any oral evidence and without having put in any written evidence from Mr Price or Mr McGovern, he made a summation of the case.  That summation was based on the oral evidence given by Mr Bryant and on the basis of the documents, put in by William Hill.

	Mr Jolly explained that his summation was on the basis that the hearing had not been completed.  He was summing up the case as at the end of that day.  He said here that during the course of his presentation of the case he had said a number of times that there were points arising on which he needed to have Mr Price there.  He assumed that from the references he was making to this point, and in the context of the letter, written by the Regional Secretary of Industrial Tribunals on 19 August, that the matter would go over to a second day.  He accepted, however, in response to our questions, that he did not make any formal second application for an adjournment.  

	In those circumstances, he submits that there was an error of law by the Tribunal in the course they took.  That was to go out, consider the case and come back and announce the decision that Mr Bryant had been unfairly dismissed.

	In support of these arguments, Mr Jolly then referred us to a number of unreported cases, starting with Giblett v Manpower Services Commission, decided by this Tribunal on 16 September 1981, which refers to the fundamental principle in the administration of justice in Industrial Tribunals as hearing both sides.  It is pointed out that, if a party is deliberately dragging its feet, or playing fast and loose with the Tribunal, or simply does not turn up, justice to the other side may require that you decide the case hearing only one side.  Consideration of administrative inconvenience must not be allowed to infringe this fundamental principle.  In that case, it was pointed out that, although Tribunals have an informal procedure, informality should not be allowed to cloud judgment as to what the right course to follow is to ensure that justice is done.  In that case, justice could only be done by acceding to an application for an adjournment made for the first time at the start of the hearing.

	We were also referred to the case of Macrofield Ltd v Miss K Kaur decided by the Employment Appeal Tribunal on 31 October 1989, which pointed out, in allowing an appeal from a refusal of an adjournment, that no reason had been given for the refusal.  There was no documentation relevant to it.  In those circumstances, the fundamental principles of hearing both sides had been infringed.  

	We were referred to the case of Joyce v King, reported in The Times on 13 July 1987 for the proposition that, whether or not a litigant was granted an adjournment of his hearing, is essentially a matter of discretion.  An Appeal Court should only interfere with it if the Judge was wholly wrong.  But where it was clear that it would not be possible for a litigant to obtain justice without an adjournment then, regardless of the inconvenience that might be caused by an adjournment, an order for an adjournment should be granted.

	Finally, we were referred to two other cases, Ring and Brymmer Ltd v Prior, on 28 January 1993, in which an adjournment was sought on the ground that an essential witness was not present.  The Employment Appeal Tribunal held, in allowing the appeal, that the Chairman, who refused the adjournment of that case had failed to take into account some essential matters.  This evidence in question could have been taken had the matter been adjourned to another day, so that it would then have been possible to hear what both sides had to say.  The President of the Tribunal said that, although it is a very rare situation, that was an appropriate case in which to set aside an order made in the exercise of a wide judicial discretion.  Justice demanded in that case that an adjournment which was refused should have been granted.

	Finally, Green v Wittington, decided on 11 July 1991, was another case where an appeal was allowed against the refusal of an adjournment, sought at the hearing.  It was emphasised there that the Appeal Tribunal only has limited powers to interfere, such as where a refusal of an adjournment has been ordered without taking account of all the matters which should have been taken into account or taking into account matters which are plainly irrelevant.  In that case, the Appeal Tribunal said that an adjournment should have been granted.

	Those cases show that it is a fundamental principle of all judicial bodies that both sides should have an opportunity to be heard before a decision is reached.  Against that there is a wide discretion of a Tribunal to refuse to grant a postponement or adjournment if it is satisfied that such a postponement or adjournment is not justified by the circumstances.  It is also clear that this Tribunal will only interfere with a decision of an Industrial Tribunal refusing to adjourn, if it is satisfied that it errs in principle or has been influenced by irrelevant factors or it has failed to take into account relevant factors.

	We have reached the conclusion in this case that the arguments presented by Mr Roe on behalf of Mr Bryant are correct.  This appeal should be dismissed.  The position is, under the Industrial Tribunal procedure rules, the Tribunal can regulate its own procedure.  It has a wide discretion over matters of postponement or adjournment.  We cannot interfere with it simply because we might have exercised it differently if we had been the tribunal.   There has to be shown to be an error of law.  Looking at all the factors known in this case, there is no error of law.  Before the hearing took place, there were two unsuccessful applications for an adjournment, so that by the time of the first hearing of the case on 5 September the Respondents, William Hill Organization, knew that an adjournment was not granted.  They had ample opportunity to make arrangements.  Those arrangements could have been either to have Mr Price there, even if it meant cancelling his holiday or, if they did not wish him to cancel his holiday, they could have had available to give to the Tribunal and to the Applicant, a statement sworn or unsworn, from Mr Price, stating what his evidence would be, if he attended.  It was possible for them to cover the absence of Mr Price, not only by written statements but also by having other witnesses there, e.g., Mr McGovern, who must have considered the whole matter of Mr Bryant's dismissal when he heard the appeal and dismissed that.  No attendance by Mr McGovern was arranged.  It also appears to us that no clear application can have been made by Mr Jolly during the course of the hearing for the case to be adjourned part-heard, so that Mr Price could come and give oral evidence when he returned from holiday.  It is not safe to assume anything during the course of adversarial cases.  If Mr Jolly wished to have an adjournment for Mr Price's evidence to be given, he should have made that position absolutely clear to the Tribunal before they went out to give a decision.  Instead, it seems to us, that by giving a summation of William Hill's case at the end of the day, he was, if anything, leading the Tribunal to believe that they were fighting the case on the basis of the evidence given during the 5 September hearing and on the basis of the documents put forward.  It would not be normal procedure in an industrial tribunal to have a summation at the end of each day of the hearing.  A summation is normally only appropriate at the end of the whole case.

	In those circumstances, it seems to us that the Tribunal were entitled to refuse to postpone the hearing when the application was made before the hearing started.  They were not in error of law in refusing to adjourn the matter part-heard when no such application was made.  In those circumstances the Tribunal exercised their discretion in a manner in which they were entitled to.  In our view, there is no error of law in this decision.  The appeal will, therefore, be dismissed.

	We would add this:  at one point in the hearing and during our deliberations after the completion of argument, we did consider an alternative.  That was not that we allow the appeal today, but that we adjourn for a short time to enable an affidavit to be sworn by Mr Jolly, setting out his account of the course of the hearing on 5 September and then submitting that to the Chairman for his comments.  In the end, however, we decided against that course, since it seemed to us that none of the particular points which Mr Jolly made during the course of the hearing of this appeal had been raised in the notice of appeal at all.  The notice of appeal was simply directed to the refusal of the adjournment sought at the start of the hearing.  If it had been sought to raise these other matters about what happened during the course of the hearing on 5 September, these matters should have been raised in the grounds of appeal.  As they were not, we have decided not to adopt the course of an adjournment to investigate the matter further.  When appeals are fought, they are fought on the basis of the grounds of appeal stated in the notice of appeal.  If it is sought to rely on other matters, they should be mentioned at an early stage on an application to amend the grounds of appeal.  There was nothing in the grounds of appeal or in any skeleton argument which foreshadowed the particular points of Mr Jolly about his assumption that the case would go over to another day part-heard.

	For those reasons we declined to take that course.  The appeal is dismissed.