Appeal No.	 EAT/215/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 February 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR L D COWAN
MS B SWITZER

MR J PUGH	APPELLANT

GUIDE PENSIONS AND INSURANCE LIMITED	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	

NO APPEARANCE BY OR ON
BEHALF OF THE 
APPELLANT/RESPONDENTS	
For the Respondents		

	MR JUSTICE MORISON (PRESIDENT):	This is an appeal which has been brought before us at very short notice.  The reason why is because there is a hearing currently fixed before an Industrial Tribunal to be held in Manchester on Monday, that is, the first working day after today.

	The grounds of the appeal are that the Industrial Tribunal have unreasonably exercised their discretion in refusing to accede to an application for an adjournment and that that unreasonable exercise of the discretion can be categorised as an error of law in the circumstances of this case.

	The facts relating to this matter are set out in the Notice of Appeal which has been filed with us.  The Appellant is the Applicant, Mr Pugh.  He was dismissed by his employers on 31 July 1996 and started industrial tribunal proceedings for unfair dismissal by a complaint which was dated 7 October 1996.

	The employers entered their Notice of Appearance on 7 November.  The matter was first listed by the Industrial Tribunal for hearing on 13 January 1997.

	On 3 January the employee applied to the Industrial Tribunal for a postponement on the basis that he would not be available on the 13th.  That application was granted and the matter re-listed for 5 February 1997.  Notification of the new date was issued on 15 January and, two days later, the employers, through their Solicitors, sought a postponement of the second hearing, such postponement being granted by the Tribunal on 20 January.  On 27 January, a further Notice of Hearing was issued stating that the matter would be listed for hearing on 17 February, that is on Monday of this coming week.

	After the Notice of Hearing had been sent out, on 29 January 1997 the employee’s Solicitors requested discovery of 10 categories of documentation.

	On 30 January the Respondents’ Solicitors contacted the employee’s Solicitors saying that some of the documentation which was asked for, was held off-site but would be sought.

	On 4 February the employer’s Solicitors wrote to the employee’s Solicitors saying that, in view of the difficulty they were having obtaining the documentation which had been requested, a postponement of the hearing on 17 February was proposed; and the employee’s Solicitors consent was sought and given by a fax dated 7 February 1997, on which date an application for a postponement of the hearing was submitted by the employer’s Solicitors telling the Tribunal that both parties agreed to the application.

	The matter was rejected by the Industrial Tribunal on 11 February in these terms:

“The Chairman directs me to inform you that your request for a postponement of the hearing listed for Monday 17th February 1997 has been refused.  It is the Chairman’s opinion that the parties and their legal advisers have had ample time to prepare the case for hearing on 17th February 1997.  The case remains listed for that date and when the parties will be expected to proceed with the hearing.”

	Immediately thereafter the employee’s Solicitors invited the Tribunal to review and reconsider its decision, by a fax sent to the Tribunal on 11 February.  

	On 12 February 1997 the Tribunal communicated to the Applicant’s Solicitors as follows:

“The Chairman has directed me to inform you that your request for a postponement of the hearing listed for Monday 17th February 1997 has been refused.  It is the Chairman’s opinion that the reasons put forward by yourselves do not constitute exceptional circumstances justifying the request being granted.”

	The contention in the Notice of Appeal before us is that, by arriving at that conclusion the Chairman misdirected himself in law, firstly because he appears to have regarded his discretion to grant an adjournment as being fettered by the requirement that the parties must show exceptional circumstances justifying a postponement.  Secondly, that the Notice of Hearing, which was sent to the parties, indicated that an application for an adjournment would not be entertained save in wholly exceptional circumstances where such a request was received more than 14 days after the Notice of Hearing.  The joint application for a postponement made by the Respondents’ Solicitors in their letter dated 7 February was made within the 14 days of the Notice of Hearing which had been sent out.  Accordingly, if the Chairman was relying upon the statement in the Notice of Hearing, he misapplied the requirement and misdirected himself accordingly.

	It is the contention of both parties that discovery still remains to be completed; that there should be a postponement to enable full and proper attention to be given to the discovery, which is to be made, and accordingly, it is their contention that it is perverse and contrary to the interests of justice that the adjournment application should be refused.

	It is very rare that the Employment Appeal Tribunal will ever consider it appropriate to interfere with a decision of an Industrial Tribunal on a matter such as whether to grant an adjournment or not, but it seems to us on the facts of this case, having regard to the history, as I have set it out, and to the rules which give the Industrial Tribunal a wide discretion, that in this case the decision of the Industrial Tribunal Chairman to refuse the parties’ joint application, which was made for good reason, was so unreasonable that we ought to interfere with it.

	It seems to us that the interests of justice do require an adjournment.  It would have been better had the Tribunal granted that application rather than this Court being forced to consider the matter at short notice in circumstances where, no doubt, the Tribunal’s list will be prejudicially affected.  But it does seem to us that the adjournment must now be granted and accordingly we direct that the decision made by the Industrial Tribunal in this case should be overturned and that the case should be taken out of the list for 17 February.

	Accordingly, the appeal is allowed.