Appeal No.UKEAT/0532/08/DA
UKEAT/0533/08/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 December 2008

Before
HIS HONOUR JUDGE BIRTLES
(sitting alone)

HSBC BANK PLC	APPELLANT

MR M A DA GAMA	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR R HIGNETT
(of Counsel)
Instructed by: 
Messrs Wragge & Co LLP Solicitors
55 Colmore Row
Birmingham  B3 2AS
	
For the Respondent	No appearance or representation by or on behalf of the Respondent.	

SUMMARY
PRACTICE AND PROCEDURE:  Postponement or stay
Appeal allowed against the refusal of an Employment Judge to postpone a two day hearing of a claim of unfair dismissal and race discrimination.  The Employment Judge has failed to take into account that the reason for the request for a postponement was the absence abroad of the Respondent’s two key witnesses.  Their absence might fatally harm the Respondent’s case.

HIS HONOUR JUDGE BIRTLES

Introduction
1.	This is an appeal against two decisions of the Regional Employment Judge for London (South), Mr Hildebrand, dated 24 November 2008 and 25 November 2008.  The case concerns two conjoined appeals.  The letter of 24 November 2008 is addressed to the Respondent’s solicitors.  (When I say Respondent I mean Respondent in the Employment Tribunal, the Appellant here)  The letter says:
“I refer to your letter of 14 November 2008.  

Employment Judge Hildebrand has considered your request to postpone the hearing and has refused it because 

The Notice of Hearing dated 13 October 2008 - no witness availability was notified until 14 November 2008.  

This case takes precedence over non-judicial commitments: postponement refused.  

The case remains listed for hearing on 11 & 12 December 2008.”

2.	The letter dated 25 November 2008 says this:
“I refer to your letter of 20 November 2008.  

Employment Judge Hildebrand has considered your request to postpone the hearing and has refused it because 

The correspondence raises nothing new.  There is no basis to reconsider the order made.  

The case remains listed for hearing on 11 & 12 December 2008.”

3.	Against those decisions, the Appellant appeals to the Employment Appeal Tribunal.  When the matter came before me last week on 6 December I ordered the case to go through to a full hearing and truncated the normal times for the parties to prepare for a full hearing.  Today Mr Richard Hignett of Counsel has appeared for the Appellant.  The Respondent is not represented but has filed an answer in accordance with the order I made and indeed has provided a written skeleton argument.

The History
4.	Mr Hignett has provided a helpful chronology of events attached to his skeleton argument.  On 28 June 2008 the Claimant lodged an ET1 (EAT bundle pages 10-17).  On the face of it, it claims only unfair dismissal.  On 4 August 2008 the Respondent lodged its ET3 (EAT bundle pages 23-28).  The claim was listed for a one-day hearing by the Employment Tribunal Service for 18 September 2008 (EAT bundle pages 29-30).  On 19 August 2008 the Respondent wrote to the Employment Tribunal at London (South) seeking a postponement and a re-listing of two days (EAT bundle pages 31-32).  On 22 August 2008 the Respondent emailed the Employment Tribunal at London (South) to confirm the Claimant agreed to the Respondent’s request (EAT bundle page 33).  On 1 September 2008 the hearing of 18 September 2008 was postponed by the Tribunal (EAT bundle pages 34-35).  On the same date, at the instruction of an Employment Tribunal Judge, the Employment Tribunal sought clarification of the scope of the Claimant’s claim (EAT bundle page 18).  On 18 September 2008 the Respondent received a letter from the Claimant confirming that he was also claiming for race discrimination (EAT bundle pages 19-22).  The claim is set out in some detail in that letter.  On 13 October 2008 the claim was listed by the London (South) Tribunal for a two-day hearing (EAT bundle pages 36-37).  On 22 October 2008 the Respondent sought postponement and a listing of three days (EAT bundle page 38).  The reason for that request at that date was that the Respondent considered:
“… an additional day will be required due to the complexity of the allegations of discrimination and the quantity of evidence which will need to be considered by the Tribunal.  

We submit that this approach will ensure that matters are dealt with proportionately and avoid the matter going part-heard, thereby saving the parties’ costs.”

5.	On 12 November 2008 the postponement request was refused.  On 14 November 2008 the Respondent sought a review of the Tribunal’s decision.  For those two matters see EAT bundle pages 39-41.  On 18 November 2008, before the Employment Judge had made a decision on the Respondent’s application, the Claimant’s solicitors agreed to the request for an adjournment or postponement (EAT bundle page 43).  On 20 November 2008 the Respondent sought a review of the Tribunal’s decision (EAT bundle pages 44-45), and on 21 November 2008 the Claimant now changed its view and objected to the Respondent’s request (EAT bundle page 46).  The letter from Brett-Holt, who were the Claimant’s solicitors, says this:
“We write further to our letter of 18th November to advise that we have taken further instructions from our client and whilst we appreciate the fact there is little time before the Hearing date, our client would ideally prefer that this matter is settled before Christmas.  Therefore, we have advised the Respondent’s that we are content to agree with revised directions and to prepare the case for the Hearing to take place on 11th December.”

6.	On 24 November and 25 November the request for a postponement were refused (EAT bundle pages 1-2).  I have read the contents of those two letters.  On 26 November 2008 the Respondent lodged this appeal and on 5 December 2008 the Claimant lodged his answer (EAT bundle pages 47 and 6-9).

7.	The only other factual matter I need to mention is that it would appear that in fixing the one-day and two-day hearings, the Tribunal Service of London (South) did not investigate with the parties whether there were any dates to avoid.  I can well understand this in the light that these were short cases, but possibly a practice of requesting dates to avoid for all cases might avoid appeals of this nature in the future.

The Law
8.	The date, time, place of the hearing are fixed by the President, Vice President or a Regional Employment Judge: see the 2004 Rules rule 27(1).  An Employment Judge may in his discretion postpone the day or time fixed for any hearing: 2004 Rules rule 10(2)(m).  The power to postpone and adjourn cases gives the Tribunals a wide discretion.  In Jacobs v Norsalta Ltd [1977] ICR 189 Phillips J set out the general principles upon which that discretion should be exercised.  He said:
“We accept, of course, that the power [and I interpolate that is now rule 10(2)(m) of the 2004 Rules] must not be used arbitrarily or capriciously, and must certainly not be used in order to defeat the general object of the legislation.  But, subject to that, it seems to us that the industrial tribunal has a complete discretion, so long as it exercises it judicially, to postpone or to adjourn any case provided there is good, reasonable ground for so doing.”  [See page 3 over 4 of the judgment.]

9.	This statement of principle by Phillips J has been approved by the Court of Appeal in a number of cases.  Examples are Carter v Credit Change Ltd [1980] 1 All ER page 252 and [1979] IRLR 361, and Teinaz v London Borough of Wandsworth [2002] IRLR 721.  The powers of this Tribunal on appeal are limited to challenging the exercise of judicial discretion in very limited circumstances.  In Teinaz at paragraph 16, Gibson LJ said this:
“Lindsay J [that is the judge of the Employment Appeal Tribunal] expressly recognised that the Employment Tribunal had a very broad discretion in relation to questions such as an adjournment, but said that discretions had to be exercised judicially.  That required the tribunal to take into account only matters which should be taken into account.”

10.	At paragraph 20 he said this:
“Before I consider these points in turn, I would make some general observations` on adjournments. Every tribunal or court has a discretion to grant an adjournment, and the exercise of such a discretion, going as it does to the management of a case, is one with which an appellate body is slow to interfere and can only interfere on limited grounds, as has repeatedly been recognised. But one recognised ground for interference is where the tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account: see, for example, Bastick v James Lane Ltd [1979] ICR 778 at 782 in the judgment of Arnold J giving the judgment of the EAT (approved as it was in Carter v Credit Change Ltd 1980 1 All E.R 252 at page 257 per Lord Justice Stephenson, with whom Cumming-Bruce and Bridge LJJ agreed). The appellate body, in concluding whether the exercise of discretion is thus vitiated, inevitably has to make a judgment on whether that matter should have been taken into account. That is not to usurp the function of the lower tribunal or court: that is a necessary part of the function of the reviewing body. Were it otherwise, no appellate body could find that a discretion was wrongly exercised through the tribunal or court taking into account a consideration which it should not have taken into account or, by the like token, through failing to take into account a matter which it should have taken into account. Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment. As was said by Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at page 653 on adjournments in ordinary civil actions: 

"I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so." “

11.	The Court of Appeal then go on to deal with the facts of Teinaz, which involved a claimant who was unable to be present for medical reasons.

The Notice of Appeal
12.	The Notice of Appeal is set out at EAT bundle pages 3 to 5.  It has been supplemented by Mr Hignett’s helpful written and oral submissions.  I take each of the four points he raises in his skeleton argument.

The First Ground of Appeal
13.	The first point is that the Employment Judge appears to have been overly influenced by the delay that would be caused in granting the postponement and re-listing of the matter.  See Employment Tribunal letter dated 12 November 2008 page 39.

14.	I accept that it is important that cases should come on as quickly as possible, but the chronology to which I have referred makes it clear that this case started on 28 June 2008.  Through no one’s fault in particular, it was not until 18 September that the Claimant clarified the fact that his claim was not only about unfair dismissal as appeared to be the case from the ET1, but also a claim for race discrimination.  Such cases are notoriously difficult.

15.	In my judgment the Employment Judge did not take into account the question of prejudice to each side in refusing the postponement.  To have postponed the case for a matter of a month or two would not prejudice the Claimant in any way.  Indeed, as I have indicated from the chronology, his solicitors were initially agreeable to the postponement.  Similarly, to refuse the postponement would have seriously prejudiced the presentation of the Respondent’s case because of the absence of two witnesses who are not in the country, those are the person who decided to dismiss the Claimant and the person who heard his appeal.  These are the two key witnesses for the Respondent.  Presenting a case simply by putting in written witness statements and not allowing them to give their evidence orally and indeed be cross-examined would have severely prejudiced the Respondent’s case.  So on the issue of prejudice, the weight falls entirely in favour of the Appellant.

The Second Ground of Appeal
16.	The second ground of appeal is the one of prejudice, which I have dealt with.  It seems to me the first and second grounds contained in paragraphs 8 and 9 of Mr Hignett’s skeleton argument really run together.

The Third Ground of Appeal
17.	The third ground is that the Employment Judge did not take into account the fact that the case should have been listed for three days and not two days.  That is a matter I am sure the Employment Judge did have in mind.  Adjournments are regrettably common in Employment Tribunals for a variety of reasons.  It may well be with the best will in the world this case could have been heard in two days.  I do not think there is any substance in this point.

The Fourth Ground of Appeal
18.	The final ground of appeal is that the Employment Judge took into account an irrelevant consideration, which is contained in his letter of 24 November, which is, “This case takes precedence over non-judicial commitments.  Postponement refused.”  With respect to the learned Employment Judge, that cannot be a principle of law or policy in the absolute way in which he expresses it.  Claimants and respondents are frequently by the time of a hearing involved in other matters.  The Respondent is an international bank.  There were good reasons why the two key witnesses could not be present: one because of pre-booked leave and the other because of a four-week conference in Chicago.  To have required each of them to have flown back to the United Kingdom for a hearing of relatively short duration is in my judgment far too onerous a requirement as the Respondent would have to pay for travel costs as well as the costs of the legal proceedings.  The learned Employment Judge appears not to have considered the effect of the absence of these two witnesses on the Respondent’s case.  In the absence of those two witnesses the Respondent would find it very difficult if not impossible to successfully defend this claim.

19.	For these reasons I think the learned Employment Judge failed to take two relevant considerations into account.  That is an error or law and for these reasons this appeal will therefore be allowed.

Conclusion
20.	The appeal is allowed and I propose to order the hearing set for 11 December and 12 December to be postponed to a date not before 5 January 2009, with a time estimate of three days not two.  In order to ensure that there is not a repetition of these events, I propose to order both parties to send the dates of unavailability of witnesses for the first three months of 2009 to the Employment Tribunal Service at London (South), and also to order the Tribunal Service to send out a pre-listing questionnaire with dates to avoid.  Hopefully this two-pronged approach will avoid a repetition of this unfortunate account.