Appeal No. EAT/312/2000

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2000

Before
HIS HONOUR JUDGE PETER CLARK
MS B SWITZER
MRS R A VICKERS

SIEMENS METERING LTD	APPELLANTS

MR T MAHMUD	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellants	MR I DODWELL
(Solicitor)
Messrs Putsmans
Solicitors
50 Great Charles Street
Birmingham
B3 2LT	

	JUDGE PETER CLARK:	This is an appeal by the Respondent before the Shrewsbury Employment Tribunal, Siemens Metering Ltd, against the refusal by a Chairman, Mr S.J. Williams, to order the postponement of the substantive hearing of this case fixed for 23 to 24 March 2000.

1	The history is as follows.  The Applicant, Mr Mahmud, was employed by the Respondent, part of the Siemens Group, from 1 September 1987 until his dismissal on 11 June 1999.  Following that dismissal he presented an Originating Application to the Employment Tribunal on 29 June 1999, complaining of unfair dismissal, breach of contract and unauthorised deductions from his wages.  The claim is resisted, the Respondent’s Notice of Appearance having been entered on 22 July 1999.  That Notice was prepared by the Respondent’s Human Resources Manager, Mr Stephen Miller.

2	It appears that on 29 September 1999 Mr Miller discussed this case briefly with the Company’s Solicitor, Mr Ian Dodwell, of Messrs Putsmans.  At that stage those Solicitors were not formally instructed to act in this matter.  On 10 November Mr Miller telephoned Mr Dodwell to say that a hearing had been fixed before the Employment Tribunal for 29 November 1999.  It was arranged that Mr Miller would represent the Company on that occasion.

3	Following the hearing held on 29 November 1999 the Chairman who conducted that hearing caused a letter to be sent to the parties dated 2 December which laid out the issues between them.  Directions were given for the preparation of bundles of documents, exchange of Witness Statements and for the Applicant to prepare a schedule setting out his money claims.  The case was to be set down for a two-day hearing.  A jurisdiction point, arising out of a period of employment of the Applicant in India, was put over to the full hearing.

4	A copy of the directions letter was sent to Mr Dodwell on 15 December and received in his office on 20 December.  At that stage Putsmans were formally instructed and went on the record as acting for the Respondent.  We are told that the Notice of Hearing fixing the date of 23 and 24 March was sent out to the Respondent and the Applicant’s Solicitors during December 1999.

5	On 21 December Mr Miller fell from scaffolding a distance of about 15 feet, suffering an open fracture to the olecranon process of his right elbow.  He is left-handed.  He was admitted to hospital and on the following day he had open reduction and internal fixation of the fracture.  He was certificated unfit for work.  On 3 February the wires were removed.

6	Although signed off work by his general practitioner until the end of March 2000 he found that being at home was not assisting his recovery and he returned to work on 13 March.

7	Prior to that date he wrote to the Tribunal himself on 2 March, requesting a postponement of the hearing fixed for 23 – 24 March, citing his accident in December as the reason for that request.

8	Asked for their comments on the application the Applicant’s Solicitors, by a letter dated 8 March opposed the application.  They submitted that the Respondent had had Solicitors acting since December 1999; the Respondent could and should have instructed those Solicitors to prepare for the hearing.  They pointed out that at that stage no medical evidence in respect of Mr Miller had been provided.

9	On 10 March Mr Dodwell faxed the Tribunal stating that his firm had been unable to take instructions from Mr Miller and enclosing medical certificates from the general practitioner indicating that Mr Miller was signed off work until 13 March.

10	On the basis of that correspondence, by an order dated 13 March, the Chairman refused the Respondent’s application for a postponement, giving as his reasons:

“There is no indication that Mr Miller is unable to give instructions or to attend the Employment Tribunal.  There has been ample time for preparation.”

11	On the same day Mr Dodwell faxed the Tribunal, commenting on the Applicant’s Solicitor’s letter of 8 March.  It was said that only Mr Miller had the necessary knowledge to provide instructions; that the case could not be progressed by the Solicitors since they came on the record due to Mr Miller’s sick absence.  He had been expected to be fit for work by 1 March but his progress was delayed and he only returned, voluntarily, on 13 March.  It appears to us, and we accept Mr Dodwell’s submission, that that letter was probably not before the Chairman when he made his order on 13 March.

12	Mr Dodwell saw Mr Miller on 16 March.  The following day he received medical reports from Mr Evans, the orthopaedic registrar dealing with Mr Miller’s case; Mr Jones, the physiotherapist and the general practitioner, Dr Loveday.  Copies of those reports were faxed to the Tribunal on 17 March with a renewed request for an adjournment of the substantive hearing.

13	By a fax dated 20 March the Applicant’s Solicitors maintained their opposition to an adjournment and by a subsequent fax of the same date the Chairman refused the Respondent’s further application.  The case remains in the list for 23 March.

14	In considering this appeal we bear in mind the wide discretion granted to Employment Tribunal Chairmen by rule 13(7) of the Employment Tribunal Rules of Procedure 1993 to grant or refuse a postponement.  We do not have a general power to review such orders.  Our powers are limited to correcting errors of law.

15	In Bastick v James [1979] ICR 778, 782 B-C Arnold J said this:

“Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion.  Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse.”

That passage has been expressly approved by Stephenson LJ in Carter v Credit Change Ltd [1979] ICR 908, 918 F.

16	In support of the appeal Mr Dodwell has pointed to the history of this matter and whilst recognising the high hurdle facing an appellant in a case such as this, submits that the Chairman reached a perverse conclusion in declining to order a postponement.  In particular, he submits, that the injury to Mr Miller and its affects have first prevented preparation of this case for trial and secondly, mean that Mr Miller will be at a disadvantage when giving evidence at the Tribunal and, in particular, when he comes under cross examination.

17	Those are the two matters which the Chairman specifically took into account when refusing this application.  Dealing with each separately, we have considered the medical evidence that has now been assembled from the general practitioner, orthopaedic registrar and physiotherapist.  None of those practitioners has expressed the opinion that Mr Miller is unfit to attend the Employment Tribunal on 23 and 24 March.  Indeed, he has attended before us today.  

18	In these circumstances the Chairman’s conclusion that there is no indication that Mr Miller is unable to attend the Tribunal hearing cannot be assailed.  There is no explanation provided in the lengthy affidavit of Mr Dodwell or the Witness Statement taken from Mr Miller as to why absolutely nothing was done in this case between 21 December 1999 and 2 March 2000.  That is against a background where Mr Miller himself completed the Respondent’s Notice of Appearance in July 1999 and continued to conduct the matter himself at the directions hearing on 29 November.  Thus, turning to the second point made by the Chairman, that there has been ample time for preparation, again it seems to us that no challenge can properly be made to that conclusion.

19	We bear in mind that the Chairman in the interests of justice has to balance the interests of both parties.  So far as the Applicant is concerned his side are ready to go, his claim is now some nine months old.  He does not wish to have the determination of his complaint delayed.  On the other side, it seems to us, the Chairman was entitled to conclude that the Respondent, which is part of a large organisation, simply has not dealt with this matter properly.  To be seeking instructions from persons in India, one week before the date fixed for the hearing in a case nine months old, seems to us, as no doubt it did to the Chairman, to be dilatory.

20	In these circumstances the short question for us is whether it can be said that the Chairman erred in law in refusing this application for a postponement?  In our judgment he did not.  Accordingly, the appeal must be dismissed.