Appeal No.	 EAT/453/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 April 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR J C SHRIGLEY
MS B SWITZER

CRUDEN CONSTRUCTION LTD	APPELLANTS

MR P D ROWLANDS & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellants	

NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANTS /
RESPONDENTS	
For the Respondents		

	JUDGE PETER CLARK:     This is an appeal by the Respondent employer, unopposed by the Applicant employees, against an interlocutory order made by a Chairman of Employment Tribunals at Liverpool on 19 March 1999, refusing to grant a postponement of a hearing of these applications fixed for 14 - 15 April 1999.  Neither party has appeared before us and we have not been provided with the pleadings in the case.  It appears that these are complaints by 10 employees or former employees of the Respondent, represented by their Trade Union UCATT.

	The Notice of Hearing was sent out on 9 March.  On 17 March the Respondent’s Solicitors applied in writing for a postponement without giving reasons, other than that UCATT agreed to a postponement.  On the same day Mr Sinclair, the Regional Organiser of the Union, having conduct of the Applicant’s cases, wrote requesting a postponement because he had another tribunal case in Manchester on 14 April.

	On 19 March, by letter from the Employment Tribunal, a Chairman refused the Respondent’s request for postponement on the grounds that no reasons were given.  On 23 March the Applicant’s request was refused on the ground that Mr Sinclair’s non-availability was not a sufficient reason to grant a postponement.

	On 29 March the Respondent’s Solicitors applied for a review of the decision of 19 March under Rule 11 (1) of the Employment Tribunal Rules of Procedure.  The grounds for the application were that both parties consented to an adjournment.  We pause to observe that this was an interlocutory order not constituting a decision within the meaning of Regulation 2(2) of the Employment Tribunal Regulations, and therefore not susceptible to review.  Nevertheless, it was open to the Chairman to reconsider his order.  He declined to do so by a letter dated 7 April.

	On 8 April the Respondent’s Solicitors sought extended reasons for the Chairman’s decision of 7 April.  Here lies a tension in the Rules to which we have referred in the past.  Whereas Rule 3(1)(c) of the Employment Appeal Tribunal Rules requires every Notice of Appeal to be accompanied by a copy of the Employment Tribunal’s extended reasons, Rule 10 of the Employment Tribunal Rules of Procedure only requires an Employment Tribunal to give extended reasons for their decisions.  As we have observed, the interlocutory order refusing a postponement was not a decision within the meaning of Regulation 2(2).  Nevertheless, the appeal is justiciable and we must deal with it on the basis of the Tribunal’s letters.

	It is well-established that this Appeal Tribunal does not have a general power of review of interlocutory orders made by Employment Tribunals or Chairmen sitting alone.  The Tribunal, or a Chairman, is master of its own procedure.  Rule 13(1) provides that subject to the provisions of the Rules, a Tribunal may regulate its own procedure.  Rule 13(7) deals specifically with the power to adjourn or postpone a hearing.  Accordingly it is necessary for an Appellant to show an error of law on the part of the Chairman before this Appeal Tribunal can interfere:  see Carter v Credit Change Ltd [1979] ICR 908, 918, per Stephenson LJ.  

	Where is the error of law here?  The Appellant submits that the parties are unprepared for the hearing and believed that the Employment Tribunal would not resist a joint application by the parties for a postponement.  That is a dangerous assumption.  The mere fact that both parties consent, or that one representative has another court commitment on the day fixed for the hearing will not automatically lead to an adjournment.  It is a matter lying within the Chairman’s discretion.  Can it be said that this was a wholly wrong exercise of discretion, amounting to perversity in the legal sense?  We cannot say that it does.  In these circumstances, there being no grounds in law for interfering with the Chairman’s exercise of discretion, we shall dismiss this appeal.

	One final, general observation.  There may be instances where the particular circumstances of a case throw up such compelling reasons for a postponement, that a refusal to postpone may fall outside the reasonable exercise of the Chairman’s discretion, allowing this Appeal Tribunal to interfere.  In the present case absolutely no explanation for the parties’ lack of preparedness has been advanced.  We are not even told, by reference to the pleadings, what issues arise in the case.  Such failure merely confirms our conclusion that this appeal must fail.