Appeal No.	EAT/1111/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 18 September 2001

Before
MR RECORDER LANGSTAFF QC
MR D J HODGKINS CB
MR D J JENKINS MBE

MISS S K HARLEY	APPELLANT

THE COMMISSIONER OF POLICE OF THE METROPOLIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING
Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	
For the Respondent	MISS SUSAN ORR
(Solicitor)
Instructed By:
Metropolitan Police Service
New Scotland Yard
Broadway
London SW1H OBG	

MR RECORDER LANGSTAFF QC:

1	We have before us an interlocutory appeal in a case in which the issue is whether or not the hearing of the case which is listed for tomorrow, 19 September, should or should not be postponed.

2	Two requests were made by the Appellant to postpone the hearing date.  The first of those was made in July in a letter which we do not have before us.  However, the substance of that letter appears from the decision of the Employment Tribunal, as set out in a letter date 26 July 2001.  In that letter a Chairman of the Tribunals rejected the request to postpone the hearing.  The reason for doing so was that it was not sufficient to say “I am unable to make the rescheduled date”.  It appears that that was the only reason then given.

3	Some three weeks later a letter was written on behalf of the Appellant expanding upon the reasons which led to the refusal to postpone of 26 July.  Those reasons were that the Appellant suffered from an eating disorder exacerbated by stress and for that reason her partner attended the hearings instead of the Appellant and gave evidence.  He, it appears, is a material and important witness.

4	The reason why postponement was sought was because he had some long-standing engagement which had been arranged before the hearing date was fixed.  That engagement was one fixed by his employer.  Moreover, it was pointed out in that letter that the Tribunal had earlier acceded to a request made by the Respondent, the Metropolitan Police, for a postponement because of witness difficulties.  The obvious point was made that even-handedness, as between the parties, might therefore require a postponement at the request of the Appellant.

5	In a letter dated 22 August the Employment Tribunal replied to that request in a letter which conveys the decision subject to the appeal before us.  That letter says that the Chairman, before whom the request was placed, had considered carefully what had been said and had balanced that against the desirability of bringing the case to a hearing without delay.  

6	Three reasons were given for the refusal of the request.  The first was that, in effect, there is a presumption against postponement because delays generally are contrary to the interests of justice.  The second was that an application for a witness order in respect of Mr Stapleton, the Appellant’s partner and witness, might be appropriate, though there had been no reason suggested why this was not the case.  The third was more a direction than a reason.

7	We have to decide first of all whether the Tribunal Chairman had power to decline a request for a postponement.  Secondly, we have to decide whether that power was exercised on a proper basis in law.  We have no power to make a decision for ourselves.  Our powers are simply that of a reviewing court.  This is not a re-hearing.

8	There is no dispute before us that the Tribunal Chairman had power to decline the request for a postponement.  I should add that the Appellant is not before us to pursue her appeal, nor is she represented and has indicated that she would not be before us today.  We nonetheless considered, particularly given the closeness of the hearing, that we should hear and determine this appeal.  We have considered therefore everything she has written in paper and which is revealed by the documents before us.

9	As to the second question, whether the Tribunal exercised its powers on a proper basis in law, we have to ask whether it misdirected itself in law and secondly, whether the decision was so perverse that it cannot stand.

10	We think the decision was harsh.  We, however, think that the two matters to which the Chairman referred in her letter rejecting the postponement were matters to which she was entitled to pay regard.  An application for a postponement of a hearing inevitably involves balancing convenience against delay.  The second reason given suggests that the degree of inconvenience caused to the Appellant could be remedied by a simple procedural step.  Indeed, we read the letter as tantamount to an invitation to the Appellant to apply to the Chairman or to the Tribunal for just such a witness order so that her case might be heard and determined properly and fairly.

11	Accordingly, we cannot, we think, say that the discretion was exercised upon any wrong principle.  Nor do we think, harsh though it may be, that the decision made was necessarily perverse.

12	Accordingly, because we have no further powers, this appeal must be dismissed and the case set for tomorrow must go ahead as originally directed some months ago.