Appeal No.	 EAT/35/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR D J JENKINS MBE
MISS S M WILSON

D R SIMPSON (CHILLED FOODS) LTD	APPELLANT

MR D R NEWMAN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR PLATTEN
(Solicitor)
Messrs Philip Hamer
Solicitors
Waterside Business Park
Livingstone Road
Hessle HU13 0EJ	

	MR JUSTICE MORISON (PRESIDENT):	This is an appeal in the matter of Newman -v- D R Simpson (Chilled Foods) Ltd, EAT/35/99.  The purpose of this hearing was to determine whether the employers had an arguable point of law in a Notice of Appeal which they wished to advance against the unanimous decision of an Industrial Tribunal held at Hull on 16 October 1998, which upheld the Applicant’s complaint of unfair dismissal and ordering the employers to pay him £9,185.

	The background to this appeal may be shortly stated.  The IT1 filed on behalf of the Applicant made it plain that he was relying on telephone conversations which took place between himself and a person Mr Walter Simpson who he described as the owner of the company.

	The IT3 put in issue the truth of the assertions as to the conversations with Mr Simpson.  The case was fixed for hearing and the matter was due to come on 16 October.  It appears that during the first week of October 1998, Mr Simpson had decided without consulting his solicitors to take a holiday abroad for personal reasons.  It is said that he overlooked the fact that there was a forthcoming hearing.  So far as the solicitors are concerned, they only became aware of Mr Simpson’s unavailability for the Tribunal for Friday, 9 October in the evening.

	Accordingly on the 12 October, the solicitors told the Tribunal that Mr Simpson had gone a holiday following a family problem, regrettably he appears to have failed to take into account the fact that the Tribunal involving Mr Newman will take place this coming Friday.  Mr Simpson is not expected back until Sunday or Monday and therefore will not be able to attend  the Tribunal and the solicitors ask for an adjournment.

	The Applicant’s representative, his trade union, recorded a most strenuous objection to the granting of an adjournment.  It says this;

“....I was informed at least a fortnight ago that Mr Simpson was intending to go to Tenerife.....”

	The Industrial Tribunal refused the application for an adjournment, by letter dated 13 October.  There was a further letter from the company indicating that they were disappointed by that decision and the Employment Tribunal responded by saying that if that was a further request for an adjournment, it was being refused.  Accordingly, the matter came on for hearing on 16 October.  

	The company were represented by their solicitor who did not either before the case began, ask for an adjournment or ask for an adjournment when the Applicant had given his evidence about important or crucial telephone conversations that he had said he had had with the Respondent’s principle witness had he been available to give evidence, namely Mr Simpson.

	The Notice of Appeal is not against the refusal against the Industrial Tribunal to grant an adjournment prior to the beginning of the hearing.  It is against the substance of the decision.  In advocating the appeal, our attention was drawn to a previous decision of the Employment Appeal Tribunal, which had indicated that it would be possible in certain circumstances to appeal an Employment Tribunal decision on the grounds that they were unable to hear the employers representative who was going to be absent.

	It does not seem to us that that decision is of significance in our determination of this perspective appeal.  It seems to us that it is a pure matter for the Tribunal to decide in the exercise of their discretion whether a case should proceed to a hearing or not, despite the absence of a particular witness.

	The decision of the Tribunal not to adjourn prior to the hearing was in our judgment entirely correct.  The Tribunal could not be expected to adjourn, unless an application was made to it, to adjourn it on 16 October 1998.  They were entitled, as it seems to us, to proceed in the absence of the material witness.  There can be nothing wrong with the decision as it stands.  It seems to us that this may be a case where Mr Simpson had underestimated the significance of the Tribunal proceedings.  If he had overlooked them, it would been within his clasp to have come back from Tenerife to deal with the matter or to have verified his witness statement on oath and it would also have been open to his solicitors to have asked on 16th for the case to be adjourned, despite the two previous refusals.

	In all these circumstances, we are not satisfied that the Tribunal has erred in law in any way in the case and accordingly the appeal does not raise an arguable point of law and must be dismissed.