Appeal No. EAT/1481/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 December 2001

Before
HIS HONOUR JUDGE D M LEVY QC
MS J DRAKE

MISS A MACKIE OBE

ACORN PROPERTY MANAGEMENT AND RESIDENTIAL LETTINGS	APPELLANT

MRS E M WEEMS	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	PHILIP J DELAFIELD
Consultant
Professional Personnel Consultants Ltd
Enterprise House
Great North Road
Little Paxton
Cambridgeshire
PE19 6BP	

JUDGE LEVY QC

1.	This is an Interlocutory Appeal by the Respondent to an application by Mrs E M Weems to an Employment Tribunal.  After receipt of the IT1 of the Applicant and the IT3 of the Respondent, the Employment Tribunal wrote to the parties giving a date for hearing as 10 January 2002.  Very shortly after the date of that document (dated 23 October), the Respondent’s representative wrote to the Employment Tribunal asking for the hearing date of 10 January to be vacated as the witness in chief of the Respondent would be in the United States.  The letter included a number of dates on which the witness would not be available in the following six weeks after that date and included many where he was available.

2.	On 8 November the Tribunal, by a Chairman, wrote back saying that the request was refused because the request had not given the name of the witness, about what that witness could give evidence, how that evidence was relevant to the issues and asked whether the Respondent’s advisers had considered whether some other witness could give the necessary evidence.
 
3.	Looking at the paragraph about the omissions, we thought that if those notices that the document indicates that if the omitted information had been provided, there was an indication that the request might have been handled sympathetically.  The letter was responded to fairly soon after and the details sought were given.  The letter dated 19 November informed the tribunal, amongst other things that the witness’ name was Peter Deveney.  He had been responsible for recruiting and dismissing the Applicant.  We had already booked to travel to the United States before he knew of the day listed for the hearing.  Paragraph 4 of the letter said:

“Should the hearing go ahead without Mr Deveney giving evidence this could benefit the Applicant the need of the Respondent not receiving a fair hearing.”

4.	Subsequently the confirmation of flights was sent.  The Tribunal’s reply to that came from an anonymous chairman in a letter dated 28 November 2000 with a squiggle of Mr Donkor for the Regional Secretary of the Tribunals which said at paragraph No 3:

“The Chairman (not named, though the Chairman’s name who had made the earlier decision) refuses your request for the following reason(s):

(1)	The Chairman considers that the parties have had sufficient time to settle but he/she (not even letters being corrected) will reconsider your request if you confirm in writing that you have settled.”

5.	We saw no sign that the settlement had been raised in correspondence and Mr Delafield who appears on this Interlocutory Application says there was none.  It appears to us that a pro forma letter may inadvertently been sent out to the parties without any proper consideration of the pros and cons of meeting the Respondent’s request save for the further comment in paragraph 3(2):

“The Chairman, Mr J Warren (who dealt with the other matter) cannot see the need for Mr Deveney, someone else can attend for Respondent.”

It also mentioned that the Applicant objected to the adjournment.  Her grounds of objection were not set out.  We do not for ourselves see there can be a fair trial if the chief witness whom the Respondent wishes to give evidence cannot attend and particularly when other dates, were offered soon after the parties were notified of the Tribunal’s hearing date.

6.	From that decision there is an appeal to this Employment Tribunal.  This Employment Tribunal is always reluctant to interfere with the way an Employment Tribunal conducts its interlocutory business but here it seems to us there has been a perfectly reasonable request for an adjournment on good grounds and there might be a point taken that there was not a fair trial if there had not been an adjournment.  In our judgment, the approach of the Chairman who wrote the letter of 28 November 2000 took too rigid approach to the Respondent’s reasonable request.

7.	In the circumstances with some regret we order that there should be the postponement requested and we hope that the Tribunal will fix another date for the hearing which will be in accordance with the dates on which the Respondent’s witness is shown to have been available as near to 10 January 2002 as possible.  We would ask that this judgment be transcribed and the order drawn expeditiously.