Appeal No.	 EAT/45/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 January 1998
Judgment delivered on 15 January 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MS B SWITZER

MISS G V MILLANE	APPELLANT

THE LONDON BOROUGH OF BRENT & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY APPEAL

Revised

 

	APPEARANCES

For the Appellant	MR A BILMES
(Solicitor)
Messrs Fisher & Bilmes
Solicitors
11-15 William Road
London
NW1 3ER	
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS	

	JUDGE PETER CLARK:     This interlocutory appeal came before us as a matter of urgency on 12th January 1998. We allowed the appeal and directed that the hearing of this case listed before the London (North) Industrial Tribunal for 13th January be postponed. We now give our reasons for so ordering.

History
The appellant, Miss Millane, was employed by the respondent Council as a teacher, latterly at Gladstone Park Primary School, from 6th January 1987 until 16th June 1997. Following termination of her employment she presented a complaint to the Industrial Tribunal on 15th September 1997. The respondent entered a Notice of Appearance on 7th October 1997 resisting the complaint.

	On 8th December 1997 the Industrial Tribunal sent out a Notice of Hearing to the parties, fixing the date for the substantive hearing of the matter for one day on 13th January 1998.

	By letter dated 12th December solicitors for the appellant acknowledged receipt of the Notice of Hearing and advised the Industrial Tribunal, with the respondents’ agreement, that the case would last for just over one day. They asked that the case be listed for 1½ days, either continuing to 14th January, or that it be relisted on two successive later dates.

	No reply was received from the Industrial Tribunal and on 5th January 1998 Miss Raja of the appellant’s solicitors telephoned the Industrial Tribunal and spoke to a Mr Raymond Giles. We have seen her attendance note. That note records:

	“You said you will then postpone the hearing on 13 January 98 and come back to us with a new date.”

	The substance of the conversation was then set out in a letter from Miss Raja to the Industrial Tribunal dated 5th January 1998.

	On the basis of Miss Raja’s understanding of her conversation with Mr Giles the parties then proceeded on the footing that the date of 13th January had been vacated.

 	Following two earlier telephone calls from Miss Raja, on 9th January the Industrial Tribunal faxed a letter to the appellant’s solicitors in these terms:

“A Chairman has seen the correspondence and spoken to Mr Giles. He directs as follows:-
There is no evidence that the Tribunal ever agreed to postpone this case. The only concession offered was to see whether a second day of hearing could be allocated on 14 January 1998. The case will proceed as listed on the 13th January 1998. At present there is no availability on the 14th, so if the case is not completed on the 13th January it will have to be adjourned part-heard, unless a late slot for the 14th becomes available.”

The letter was signed by Mr Giles on behalf of the Secretary of the Tribunals.

	Having had sight of that faxed letter Miss Raja telephoned the Industrial Tribunal and spoke to Mr Giles. Again we have seen her attendance note of that conversation. Mr Giles confirmed that the Chairman was unwilling postpone the hearing date of 13th January. He offered his apologies. Miss Raja contended that there had been a mistake which ought to be rectified.

	A partner of the appellant’s solicitors firm, Mr Bilmes, then took up the matter. After speaking to Mr Giles on the telephone, he faxed the Industrial Tribunal setting out the history, pointing out that the case was not ready for hearing, and asking for a Chairman to reconsider the question of postponement. The respondents endorsed their lack of objection to an adjournment on a copy of Mr Bilmes’ letter.

	The tribunal’s response was that the Chairman’s Order would stand; there would be no postponement; no interlocutory hearing would be arranged prior to 13th January.

	It is in these circumstances that this appeal is made.

Appeals against interlocutory orders
We should say at the outset that the respondents do not oppose this appeal. That, however, is not of itself a sufficient ground for allowing the appeal. Our jurisdiction is limited to correcting errors of law. We can only interfere with an interlocutory order of an Industrial Tribunal in the circumstances identified by Arnold J in Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 778, 782, that is to say, where the Industrial Tribunal, or here a Chairman or Chairmen of Industrial Tribunals, has taken into account an irrelevant factor in exercising his discretion, or failed to take into account a relevant factor, or otherwise reached a perverse conclusion. A perverse conclusion is one which is irrational, an impermissible option, or otherwise falls within that collection of expressions to be found in the judgment of Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, 443.

	Recognising that limit on our jurisdiction Mr Bilmes, who appears before us, submits that the Chairman’s conclusion that the hearing should go ahead on 13th January was perverse in the sense which we have indicated.

	One of the difficulties in this case is the total absence of reasons given for the orders made. It is, of course, correct to say that under the Industrial Tribunal Rules a Chairman (it will usually be a Chairman sitting alone) is not obliged to provide extended reasons other than for a “decision” as defined in Regulation 2(2) of the 1993 Regulations. He is therefore not obliged to give reasons for an interlocutory order such as this. That does not prevent a Chairman providing his reasons voluntarily. In our experience reasons are normally given for interlocutory orders made at a directions hearing when requested. Unfortunately, no hearing was ordered in relation to the appellant’s postponement application here. However, the EAT Rules 1993 require, by Rule 3(1)(c), that an appellant serve with his Notice of Appeal a copy of the extended written reasons for the decision or order of the Industrial Tribunal appealed against. There is thus an inherent contradiction between the Industrial Tribunal and the EAT Rules of Procedure which we hope will be addressed by the appropriate Rules Committees. 

	We are therefore left to infer what reasoning led the Chairman or Chairmen to make the orders under appeal. We can think of none, other than pure administrative convenience. That is not an irrelevant factor. Industrial Tribunals must be left to arrange their own listing so as to provide the most efficient service to the public, and in particular litigants who are waiting to have their cases heard. However, that cannot be elevated to the sole and guiding principle when considering an application for a postponement. Ultimately, justice must be done in every case which comes before an Industrial Tribunal.

	On the particular facts of this case there was, at the very least, a genuine misunderstanding between Miss Raja and Mr Giles on 5th January as to whether the forthcoming date was vacated. She believed that it was and the parties then proceeded on that basis. The Industrial Tribunal’s faxed letter of 9th January gave the appearance of a volte face. If the case was now to go ahead the parties would not be ready. Both felt at a disadvantage in presenting their cases on 13th January and they jointly applied for the date to be vacated.

	Without giving any reason the Chairman refused their application and declined to hear oral argument at an interlocutory hearing. In the absence of reasons being given we are driven to conclude that such an order was irrational in the sense identified in Stewart’s case. We think that it must be set aside.

	Having discerned an error of law in the Chairman’s approach we shall exercise our powers under s.35(1) of the Industrial Tribunals Act 1996 and direct that the date be vacated and refixed through the usual channels. Our reasons for doing so are first, that the parties are not ready for trial, in part as a result of the misunderstanding which arose on 5th January and secondly, that justice cannot properly be done as between the parties in these circumstances. In addition a new factor has arisen. We are told by Mr Bilmes, and we accept, that the appellant has fallen ill and will not be fit to attend the Industrial Tribunal on 13th January. In all these circumstances we think that the proper course is to grant the adjournment sought, effectively on the application of both parties.