Appeal No.UKEAT/0088/04/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2004

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

GFI HOLDINGS LTD	APPELLANT

MR JOSEPH SANTOMO	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M GRIFFITHS
(of Counsel)
Instructed by:
Messrs Magrath & Co
Solicitors
52/54 Maddox Street
London W1S IPA	
For the Respondent	No appearance or 
representation by or 
on behalf of the Respondent

HIS HONOUR JUDGE PETER CLARK

1	This case is presently proceeding before the London Central Employment Tribunal.  There are combined complaints by the Applicant, Mr Santomo, alleging (1) unlawful deductions from wages and (2) unfair dismissal against his former employer, GFI, the Respondent.  I shall refer to the parties in this judgment as they are described below.  

2	There is before me an interlocutory appeal by the Respondent against Orders made by an unnamed Chairman or Chairmen dated 14 and 19 January 2004 refusing the Respondent’s application made on 3 December 2003 for a postponement of the substantive hearing of the combined applications presently fixed for 3 - 6 February inclusive.

Procedural history
3	The main events in the proceedings are these.  The first Originating Application, alleging unlawful deductions from wages, (the first complaint) was presented to the Tribunal on 1 July 2003.  In Particulars given of that complaint the Applicant names Mr Colin Heffron, then Managing Director of the Respondent, as the person responsible for, as it is put, capriciously reducing a bonus allocation to which the Applicant is said to have been entitled.  By their Notice of Appearance to the first complaint the Respondent takes issue with the Applicant’s case against Mr Heffron.  

4	The first complaint was listed for hearing for one day on 16 September 2003.  Without notice to the Respondent, the Applicant’s solicitors applied for a postponement on the grounds that the Applicant would then be in America.  That application was granted by a Chairman without reference to the Respondent, whose witnesses were warned for 16 September.

5	On 16 September the second complaint alleging unfair dismissal was presented.  It is common ground that the Applicant was summarily dismissed on 18 July 2003.  The Applicant says that it was for an inadmissible reason, namely his complaint of unlawful deductions from wages (see the Employment Rights Act 1996 section 104).  The Respondent contends that he was dismissed for misconduct.  Mr Heffron features in the Respondent’s Notice of Appearance to the second complaint.  

6	A fresh hearing date was fixed for 8 October.  That date was vacated by the Tribunal on the basis that the claims were combined and would take four days to try.  On 20 November the combined cases were listed for hearing on 3 and 6 February.  

7	The Tribunal Notice of Hearing dated 20 November contained the usual provision (paragraph 3) that save in wholly exceptional circumstances no application for a postponement due to non-availability of witnesses would be granted if received more than 14 days after the date of the hearing Notice.  

8	On 3 December, just within the 14 day period, the Respondent’s solicitors wrote to the Tribunal, with a copy to the Applicant’s solicitors, seeking a postponement on the ground that one of the Respondent’s key witnesses (unnamed in the letter) would be unavailable during the period 3 - 6 February because he would be travelling between New York and Asia.  

9	Nothing was heard in response from either the Tribunal or the Applicant’s solicitors.  On 23 December the Respondent’s solicitors telephoned the Tribunal to be told that the Tribunal was still dealing with applications to postpone January hearings and there would be no response before the New Year.  A further telephone enquiry on 29 December was met with the response that all the clerks were busy.  
10	Having still not heard anything the Respondent’s solicitors wrote to the Tribunal on 12 January requesting an urgent response.  That letter was copied to the Applicant’s solicitors who, for the first time, faxed the Tribunal on 13 January expressing opposition to the application.  

11	On 14 January the first Chairman’s Order was made.  The reasons given for refusing the Respondent’s application were:
“(a) You have not stated:
(a) the name of the witness
(b) what the witness can give evidence about
(c) how that evidence is relevant to the issue(s)
Have you considered whether some other witness can give the necessary evidence?
(b) Moreover your opponent has objected to the postponement requested.
(c) The witness may give his evidence on a pre-arranged day rather than attend the whole hearing”

12	The Respondent’s solicitors wrote on 15 January to the Tribunal.  They named the witness as Mr Heffron; they pointed out that he was the Respondent’s main witness and referred to his featuring extensively in the pleadings in both complaints and explained that he had recently been promoted to President of the GFI Group; that he would as a result be relocating to America and explained why he would be in that country throughout the period 3 - 6 February.  

13	A Chairman considered that response and affirmed the earlier refusal on 19 January for these reasons:
“(a) It is not in the interests of justice to delay the hearing further.
(b) This matter was set down for a further hearing in November 2003 and the Tribunal does not accept the reason why the respondents delayed in providing details to the Tribunal.”
The letter adds:
“The Respondent’s witness will have to re-arrange his timetable.”
The Appeal
14	The Applicant opposes this appeal, although no formal submissions are made in support of the Tribunal’s Orders by Mr Davies, the Applicant’s solicitor, who attends to observe these proceedings.  In a letter dated 29 January Mr Davies relied upon the principle that the Employment Appeal Tribunal would be loath to interfere with an Employment Tribunal Chairman’s exercise of discretion in a matter such as this.   

15	I accept that general principle.  I can only interfere with such Orders where first an error of law is made out.  

16	Mr Martin Griffiths, for the Respondent, equally acknowledges that principle, but he points out, correctly in my view, that the appellate jurisdiction extends to correcting Employment Tribunal decisions or orders where the Chairman’s exercise of discretion is flawed on Wednesbury grounds.  See most recently the observations of the Court of Appeal in Teinaz -v- London Borough of Wandsworth [2002] ICR 1471, in particular, and relevant in my view to the present appeal, it is open to me to interfere when the Tribunal below has taken into account irrelevant factors or failed to take into account relevant factors or has misunderstood the facts (see Lady Justice Arden paragraph 39).  

17	Applying that principle Mr Griffiths has persuaded me that the Tribunal did fall into error on both occasions when considering this postponement application for the following reasons.

14 January Order
18	It is clear from the Chairman’s letter that he took into account the Applicant’s solicitors’ letter of 13 January (“your opponent has objected”).  Yet in that letter the Applicant’s solicitor identifies, correctly, Mr Heffron as the ‘key witness’.  That fact does not appear to have been taken into account by the Chairman when he purported to rely on the Respondent’s failure to name Mr Heffron in the original postponement application letter of 3 December.  

19	Secondly, the Chairman appears to have overlooked the basis of application; that the witness would be unavailable throughout the period 3 - 6 February.  It is not a question of him attending on just one day of the four day hearing.  

The 19 January Order
20	The second ground for refusing the postponement application on this occasion displays, in my judgment, a misunderstanding of the facts.  The delay in this case was caused, first by the initial postponement of the Applicant’s request, and secondly, the Tribunal’s delay in dealing with the application of 3 December.  There was specifically no delay on the part of the Respondent in providing the name of the witness, that was done the day following the first Order of 14 January.  In any event, that information was before the first Chairman via the Applicant’s solicitors as I have earlier observed.

21	More generally, I would add two further comments.  First, the reasons provided for the Chairman’s Orders have a familiar ring.  No doubt it is helpful for duty Chairmen to have a menu of reasons for making Interlocutory Orders, particularly where, as the circumstances of this case demonstrate, there are many such applications to be processed.  However, standard reasons can be no substitute for proper consideration of the circumstances of any individual case.  I am not satisfied, for the reasons given, that this application was properly and carefully considered on either 14 or 19 January.  In this context I echo the observations of Peter Gibson LJ in Peters -v- Sat Katar Co Ltd [2003] IRLR 574 paragraph 21, in relation to standard recitals in Orders made by the EAT Registrar on applications for extension of time for appealing.

22	Secondly, the interests of justice and the overriding objective require fairness to both parties.  In my view this Respondent was entitled to feel that fairness had not been achieved on these occasions.  

Conclusion 
23	In these circumstances I shall allow this appeal.  In view of the shortness of time I shall exercise my powers under section 35 of the Employment Tribunals Act 1996 and substitute an Order that the postponement sought be granted.  I do so for these reasons:
(1) Any delay in this case does not lie at the door of the Respondent.
(2) Mr Heffron is plainly a highly material witness.  The question posed by the first Chairman, again, I suspect, taken from the standard menu, “have you considered whether some other witness can give the necessary evidence” allows of only one answer, no, as a brief perusal of the pleaded issues shows.  
(3) The application for postponement was made within the time specified in the 20 November Notice.  That does not, of course, mean that the application ought necessarily to be allowed, but it is a factor I take into account as part of the overall circumstances of the case.  
(4) A satisfactory explanation for Mr Heffron’s unavailability throughout the trial period 3 - 6 February has been given by the Respondent.
(5) Whilst I note the Applicant’s objection, I see no substance in it.  I also bear in mind that no objection was taken to the postponement application between 3 December and 13 January, although the Applicant was made aware of the application by the Respondent on 3 December.  That may be contrasted with the without notice application by the Applicant which was granted without reference to the Respondent in relation to the initial hearing date fixed for 16 September last.  
(6) The overall justice of the case, in my judgment, requires that a postponement be granted.

It will be for the Regional Chairman of Employment Tribunals to set a new date, I would hope in consultation with the parties, although their convenience cannot be decisive in determining when this case will be heard.