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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> British Nursing Co-Operations Ltd v. Duffy [2000] UKEAT 523_00_0505 (5 May 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/523_00_0505.html Cite as: [2000] UKEAT 523__505, [2000] UKEAT 523_00_0505

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APPEARANCES

 

For the Appellant	MR A DENNY (Solicitor) MESSRS BATES WELLS & BRAITHWAITE Cheapside House 138 Cheapside London EC2V 6BB
For the Respondent	No Appearance by or on Behalf of the Respondent


 


MR JUSTICE NELSON

1. This is an appeal from the decision of the Employment Tribunal sitting at Leeds on 17 April 2000 – 3 May 2000, which refused the Appellants request for an adjournment of the case which has been fixed for Monday 8 May 2000.
2. The claim which is made by the Applicant is in respect of unfair dismissal. It was decided by the Tribunal that the matter should be dealt with initially by way of a preliminary issue at which the employment status of the Applicant would be determined. That was heard and decided on 20 March 2000 when by the unanimous decision of the Tribunal it was decided that the Applicant was continuously employed for a period of not less than one year, ending with the effective date of termination. Accordingly the Tribunal decided it had jurisdiction to entertain her complaint of unfair dismissal..
3. On 23 March 2000 the substantive hearing date that was fixed for 8 May, and it is that hearing which the employers have sought to adjourn until after their proposed appeal against the preliminary ruling had been heard.
4. That application for an adjournment is resisted by the Respondent, Jennifer Anne Duffy on the grounds set out in her letter of 4 May 2000. She indicates that there has been ample time for both parties to prepare and the application may simply be a delaying tactic by the Appellant: she submits that the fact that there are separate issues in the main substantive hearing on liability is irrelevant. They are going to have to be heard, and it would be appropriate for this Tribunal to be seized of the whole case for the determination of all issues, both preliminary and substantive, and that would be the appropriate way of dealing with it. It would be right that the Employment Tribunal hearing should take place and a decision on the substantive issues be reached and then all matters could come before this Court.
5. It is also said that obvious points are made by the Appellants in their grounds of appeal which are clear without being set out to this Tribunal.
6. Lastly, it is said, and it is this which has caused the Tribunal some concern, that it is prejudicial to Mrs Duffy's case to have the hearing of 8 May adjourned because she has arranged for her witnesses to attend on that day. They in turn have made special arrangements to have time off of their employment. There is no guarantee that alternative arrangements could be made for the witnesses to attend on another day.
7. The application to adjourn was refused by the Employment Tribunal in Leeds, on the basis that the matter should proceed to a full hearing, notwithstanding any Notice of Appeal that the Respondents might lodge against the preliminary ruling and on the basis that if the matter did go to appeal, the Employment Appeal Tribunal should be seized of the whole case not just the preliminary issues. Any adjournment would cause further delay at the determination of all matters before the Tribunal, which the Chairman did not consider appropriate. That decision was reiterated on the 4 May 2000, the same reasons in essence being put forward.
8. It submitted to us today, that the whole purpose of dealing with the matter by way of preliminary issue was to save costs and deal with the matter expeditiously because, and this is the heart of submissions made to us, the preliminary issue may well be decisive so that there would be no need for a substantive hearing to take place at all. In these circumstances it would be quite inappropriate to have a substantive hearing before the preliminary issue had been dealt with fully, namely by way of appeal as well as first hearing.
9. If the Appellants in this matter were to succeed, there would be no need for a substantive hearing at all to hold what would be, and is likely to be a two-day hearing. It would in such circumstances be a serious waste of public money and costs.
10. We are told by Mr Denny, who appears on behalf of the Appellant today, that the hearing of the substantive matter is estimated for two days, that there are two or three witnesses for each side, that those witnesses are all or substantially all local, and that although inconvenience would plainly be caused it would be in probability no more than inconvenience.
11. We have considered this application. We have considered the contents of the Respondents letter, raising her objections to the application to the appeal seeking the adjournment. We have considered the grounds given by the Tribunal for ruling that the adjournment should not be granted. We are however satisfied that the Tribunal, in refusing the adjournment did in fact act in error. It is appropriate in a case where a preliminary issue, which may be decisive has been ordered in a case such as this that that issue should be determined first. The Appellants have already put in their notice to appeal that decision and it may be the case that a substantive hearing will be wholly unnecessary depending on the outcome of an appeal.
12. In those circumstances it seems to this Tribunal to be appropriate that the substantive hearing, which may be quite unnecessary, should await the result of the appeal which has been put in and that the decision to the contrary, by the Tribunal was wrong. The appeal is therefore allowed and the adjournment granted.