Appeal No.	 EAT/1256/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 February 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
(IN CHAMBERS)

EUROPEAN AIRWAYS LTD	APPELLANTS

CAPTAIN S WRIGHT	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR R ROBERTS
(of Counsel)
Jones Miller & Co
James Charles House
37A Aylesbury Street
Bletchley
MK2 2PS	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether or not there is an arguable point of law in an appeal which European Airways Ltd wish to argue against a unanimous decision of an Industrial Tribunal, which concluded that the Applicant was entitled to a declaration that there had been unlawful deductions made from his wages in the sum of £3,060.38p.  That decision is recorded in a written decision of the Industrial Tribunal dated 13 September 1996.  We are told by the Appellants’ Counsel, and accept, that although it records the decision as being that of a Chairman sitting alone, in fact on the occasion in question the Chairman sat with two lay colleagues.

	The decision itself relates to various items of deductions which are specified in their decision and do not need to be referred to further, save that one of the matters concerned the payment of a cheque in relation to his February pay, which was banked, but countermanded by the Respondents on 7 March 1996.  It appears that the Respondents were having difficulty in financing their operation, although it would also appear that the reason why they stopped the cheque was not for lack of funds, but because they believed he was being overpaid for that month in relation to the cheque as it was drawn.

	The real point in this case relates to the employer’s potential counter-claim which they say they had against the Applicant, who was a captain employed by them for a relatively short period of time, and who left their employment without, as the employers would say, giving notice of termination.

	At the outset of the proceedings an application was made to the Industrial Tribunal by the employers that the case should be adjourned.  The basis on which that application for an adjournment was made was that the company had had insufficient time to prepare a counter-claim that they had against the employee and that the matter should be adjourned to enable them to formulate such a counter-claim.

	The Tribunal were referred to correspondence which had taken place between the parties prior to the date of the hearing.  Indeed, the employers had previously requested an adjournment, largely on the basis that, due to an error of an address, they had only been given three weeks’ notice of the hearing date.  

	The letter from the employer’s Solicitors, which was provided to the Tribunal, is dated 15 August.  There was also a letter dated 16 August which the Tribunal was provided with.  Having looked at those letters the Tribunal concluded as follows:

“3  ...  The respondents were now trying to contend that they had a counter claim and that it might be in excess of £25,000.  That is above the Tribunal limit.  This had been set out in a letter from the respondents’ solicitors dated 16 August 1996 which had been sent to the Tribunal.  The counter claim had not been particularised although there was a suggestion that there was going to be a claim for breach of confidentiality, defamation, exemplary damages and other claims.  This was not a serious counter claim.  It was an attempt to frighten the applicant into giving up his claim.  Some of the open correspondence had admitted that the applicant had a good claim.  Mr Buczowski in response said that because of the difficulties in regard to the listing of the hearing and the lack of time to prepare a counter claim the solicitors involved in the case would have to give evidence.”

	It seems to us, having looked at the correspondence which has been provided to us, that the Industrial Tribunal were entirely right in their conclusion that there was not a serious counter-claim being advanced.  They were entirely right in their conclusion that it appeared to be an attempt to frighten the Applicant into giving up his claim, not least, because part of the claim for exemplary damages related to the particulars of claim lodged by the Applicant at the Industrial Tribunal.

	Accordingly, the application for an adjournment was not acceded to and the Industrial Tribunal proceeded to adjudicate upon the employee’s claim for unlawful deductions and arrived at their conclusion.  Effectively, it is said in this case that the Tribunal erred in law in not granting the adjournment and refusing, in effect, to consider the prospective counter-claim as part of their decision.  It was said that this was an unjust decision, having regard to the short time span which was available to the employers, and having regard to the fact that, in relation to the unlawful deductions, there was a failure by the employee to make proper discovery.  

	It seems to us, with respect, that those points are not good arguable points of law.  The question whether a Tribunal should adjourn or not is very much a matter falling within their discretion.  We will only intervene in the exercise of an Industrial Tribunal’s discretion where we are satisfied that their decision involves some serious misdirection.  In our judgment, not only were the Industrial Tribunal entitled to arrive at the conclusion they did, but they were entirely right to do so.

	This was a plain case, in our judgment, on the material which was available to them, of a counter-claim being advanced in extravagant terms in terrorem of the Applicant, in the hope that it would frighten him off from pursuing his claim before the Industrial Tribunal.  They were right accordingly, not to permit that state of affairs to take place.  That decision was proved to be obviously correct, because in due course the employers launched proceedings in the High Court for some £6,000 odd , which they said was attributable to the employee’s own breach of contract.  That is to be contrasted with the extravagant figures being paraded in the letters which were designed to frighten off the Applicant.

	In the circumstances it seems to us, therefore, that we cannot interfere with the decision of the Industrial Tribunal and that there is no arguable point of law on their decision to adjourn or not to adjourn the proceedings.  

	It is also submitted that they were wrong not to grant the adjournment because of lack of discovery.  It seems to us that, although it is regrettable that documents were produced during the course of the hearing, we have no reason to believe that any injustice has flowed from that late disclosure of the documentation.  We do not consider that there is any point of law arising out of that difficulty.  It should be added that no question of documentation would have affected the company’s ability to present a cogent and reasonable and genuine counter-claim for breach of contract, if they believed genuinely that they had such a claim.  

	We should also say that the substance of their counter-claim depended upon the employee himself having been guilty of a repudiatory breach by walking off from his employment without giving due notice.  That would have been very much in issue and, indeed, having regard to the way he had been treated by the company, perhaps through their financial difficulties, during the course of his employment, we consider that it is very likely that he would have had good grounds for saying that he was entitled to leave without giving any notice.

	Accordingly, the basis for the counter-claim would largely have disappeared.  But, be that as it may, the real question is, should they have adjourned the proceedings to enable a counter-claim to be formulated?  To that we say the company had plenty of time.  This was a try-on by them.  The Tribunal were right to detect it as such and accordingly, their decision cannot be faulted.

	This appeal therefore will be dismissed.