Appeal No.UKEAT/0174/05/TM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 2005

Before
HIS HONOUR JUDGE J BURKE QC
MR A E R MANNERS
MR P M SMITH

MR S EASTWOOD	APPELLANT

WINCKWORTH SHERWOOD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS MARY O'ROURKE
(Of Counsel)
Instructed by:
Messrs Winckworth Sheerwood 
Solicitors
35 Great Peter Street
Westminster
London
SW1P 3LR	

For the Respondent	
MR GAVIN MANSFIELD
(Of Counsel)
Instructed by:
Messrs Beasley Johnson Loyns
Solicitors
66A Lichfield Street
Walsall
WS4 2BX	

SUMMARY

Appeal against refusal of adjournment of preliminary issue as to whether Appellant was an employed solicitor or a partner.  The issue was potentially complex, it being the A’s case that the formal documents did not represent the reality.  The Respondents, who had most of the documents, made late and partial disclosure; on the day before the hearing they agreed both an adjournment and a timetable for disclosure, witness statement and other steps is necessary preparation for a hearing in 3 months time; but the Chairman and, at the hearing, the Tribunal refused an adjournment.  Held that the Tribunal had failed to take into account relevant factors including the Respondent’s agreement (from which they withdrew on learning of the Chairman’s refusal) and the lack of previous delay or urgency, had taken into account irrelevant factors and had reached a perverse decision.  Appeal allowed.

HIS HONOUR JUDGE BURKE QC

The History
1.	This is an appeal by Mr Eastwood against the decision of the Employment Tribunal sitting at London South, chaired by Ms Sage and promulgated with written reasons on 3 February February 2005.  Mr Eastwood, to put in neutrally, worked as a solicitor for Winckworth Sherwood who are a firm of solicitors based in Great Peter Street in Westminster from 1997 to July 2004.  He claimed to the Employment Tribunal that he was constructively dismissed by the Respondent firm as a result of various things said and done between June 2003 and July 2004.  The details are not relevant for present purposes.

2.	In his Originating Application he correctly anticipated that the Respondents would, by way of resistance to his claim, assert that he was not an employee as he contended but a partner.  The relevant section of his Originating Application said this:

“My employers will claim that I was a partner in the firm and not an employee.  This was a fiction in that I received a fixed salary and not a share of profits (although they were careful to call it a “priority share”) and I had a fixed number of days holiday entitlement.  The amount of my salary (or “priority share” as they called it) never varied and bore no relation to actual profits either of the firms or indeed my department.”

Those contentions foreshadowed that there was likely to be an issue as to whether Mr Eastwood was a partner or an employee, which issue was not likely to be resolved simply on the face of whatever was the deed or agreement which set out a label or description of his role or status and that matters on a much wider basis were likely to have to be canvassed.

3.	In their Response the Respondents did indeed set out that Mr Eastwood was a partner, that he had at all times been a partner in the firm and that he was not an employee.  They referred in particular to a partnership agreement made in 2002 and put forward detailed reasons why Mr Eastwood was not an employee but was a partner.  The other grounds of their resistance to the claim that Mr Eastwood had been constructively dismissed do not need, for the present, to be considered.  It is relevant to point out that the Originating Application was dated 12 October 2004 and the employer’s response was dated 11 November 2004.

4.	On 14 November a letter listing the proceedings for a pre-hearing review on 14 December was sent to the parties.  A Chairman had plainly made the decision that a preliminary issue should be heard as to whether Mr Eastwood was a partner or an employee.  That letter is not, we think, within our bundles; but it is common ground that, although the Tribunal in that letter was ordering the parties, within a few days of the employer’s Response being filed and only just over a month from the Originating Application, to be ready for trial of what was undoubtedly are important and, if it went against Mr Eastwood, the crucial preliminary issue - and potentially, as we see it, a difficult issue - the Tribunal did not give any directions as to disclosure of documents, witness statements, skeleton arguments or otherwise for the preparation of the trial of that issue.  Of course, we do not criticise the Tribunal for that.  The order was, no doubt, made on the basis of a brief look at the Originating Application and at the Response; but it is a matter of fact and history that no such orders were made. 

5.	Over the next two weeks or so neither party sought directions.  On 2 December solicitors acting on behalf of Mr Eastwood wrote to the Respondents, who were acting on their own behalf, a letter in which they sought disclosure of seven classes of document which they said were relevant and necessary to enable the preliminary issue properly to be considered by the Tribunal.  It is not necessary to go through those seven heads or to describe what was sought by them; there is no doubt that the request for disclosure was extensive and searching.  Mr Mansfield, on behalf of the Respondents, has suggested that in some respects the request was far too wide (although it has not been suggested at all that it was a request which was not made bona fide) or was made in a destructive way; we do not propose to enter into full discussion as to whether obviously extensive request was in some respects too wide.  Certainly in some respects it was not too wide because it produced a considerable degree of documentation as we will describe.  At the end of that letter, the solicitors for Mr Eastwood said:

“Please confirm by close of business on Friday 3 December that full disclosure of the above will be given and that copies will be provided to us by Tuesday 7 December 2004.  If confirmation is not received and/or copies provided by these dates we shall apply to a Chairman of the ET for the appropriate Order.”

They did not get a response by the close of business on Friday 3 December; but they did get a response by fax on the morning of 6 December, the following Monday (albeit the document is headed 11 November).  That letter said that the Respondents had not been able to deal with the correspondence earlier because of other commitments, that they had a conference with Counsel shortly and that they hoped to be able to respond to the extensive request for disclosure after the conference “tomorrow” i.e. 7 December.

6.	On the morning of 8 December, having heard nothing, Mr Eastwood’s solicitors wrote to the Respondents asking for a substantive response by noon, failing which they would apply for the appropriate Order.  That was obviously the correct step to take.  There was a response much later in the day; at 8.52 pm the Respondents sent to the Claimant’s solicitor by e-mail a message in which they recommended him to review the large binder of material that they had sent by special delivery that afternoon before considering making any application to the Tribunal.  In other words, they were asking the Claimant’s solicitors not to make an application.  They said that the material in the binder “deals with most of your reasonable requirements” and that they thought that an application would be unreasonable in the circumstances.

7.	That message was not picked up by the Claimant’s solicitor until 9.15 or so in the morning of 9 December.  On the afternoon of 8 December the binder or bundle of documents referred to in that message was sent by the Respondents to Mr Eastwood’s solicitors in the Midlands.  It contained, we are told, about 200 pages which were not paginated or indexed but were subdivided into “tabs” with generic descriptions, and it reached Mr Eastwood’s solicitor on the morning of 9 December.  It contained some but not all of the documents which Mr Eastwood’s solicitors had sought by way of disclosure.  What it contained was described in a letter of 8 December from the Respondents to Mr Eastwood’s solicitors.  Category 4 of the documents requested, i.e. deeds and agreements relating to partners whose situation was the subject of revision in around 2002, as the Respondents were alleging was the case with Mr Eastwood, and copies of all documentation relating to such revision, including correspondence, memoranda communications with the Inland Revenue and the Department’s accountant and matters of that kind.  So far as that category is concerned, the letter of 8 December said:

“We are searching for documentation relating to the revision of the partnership agreement in 2002.”

In other words, it said “we have not seen any documents in that category”.  That was plainly a very important category because it was the 2002 agreement upon which the Respondents were principally relying for their case that Mr Eastwood was a partner; and his case was that that document showed or purported to show what the Respondents wanted it to show but the reality, before and after 2002, was very different; and it is not difficult to see how seeking disclosure of memoranda and communications around the time of that document, which might have shown what the Respondent were then doing and saying, was a relevant and important step.

8.	As to Category 7 of the documents sought, the letter of 8 December said that that category was “not sufficiently particularised by reference to the issues being considered at the hearing of 14 December”.  In other respects it is plain that what was being supplied in the bundle which arrived on 9 December fell short of what was being sought.  When later (and we shall come to this aspect of his story in due course) a witness statement from Mr Vesey, the Respondents’ partnership secretary was served, it appeared that, from 1997, Mr Eastwood and others were, according to that witness statement, salaried partners and that in 2001 or 2002 it was decided on accountants’ advice to revise the relevant agreements so as, it was said, to be consistent with the reality of their position; and Mr Vesey made a number of points about how the Respondent’s firm worked and made comparisons on various criteria which indicated that what had been going on in 2001 and 2002 was a very material matter.

9.	On the day after that letter was written, 9 December, the Respondent asked for copies of Mr Eastwood’s tax returns.  The Claimant’s solicitor sent the bundle which had arrived that morning off to Mr Eastwood, who was working in London; he saw it for the first time on Friday 10 December.  He looked at it over the weekend and came to the conclusion that discovery was incomplete.  On the morning of Monday 13 December Mr Eastwood’s solicitors wrote to the Respondents in these terms:

“We have now had the opportunity of considering the papers disclosed by you and received in these offices on Thursday.  Our client has also now been able to read through the bundle over the weekend.

We are very concerned that full disclosure has not taken place as requested.  This is in particular with regard to our request for disclosure of documentation relating to the revision of the Partner Agreement and connected advice etc.

For example our client is in possession of two memos dated 12 & 14 June 2001, from Mr Vesey to himself, which relate to this revision.  It is clearly of crucial importance in the context of the question of our client’s status in your Firm that such documents are disclosed and considered by the Tribunal.

Because of the very limited time within which to consider the documents already received and the obvious gaps in disclosure we believe that tomorrows hearing should be adjourned to allow for the following:

Proper and full disclosure.
Exchange of witness statements.
Exchange of skeleton arguments
Re-listing of a time estimate of 1½  days.

Please let us have your position by return and any comments on directions and an appropriate timetable.

In the absence of agreement between us we shall be applying for an adjournment in person tomorrow.”

10.	It is clear that there was then a telephone conversation between Mr Eastwood’s solicitor and the Respondents because the Respondents faxed a reply in these terms:

“We refer to our telephone conversation of earlier today and to our recent correspondence.

In the light of your comments concerning disclosure we agree that it would be most likely to save time and costs if there was an adjournment of tomorrow’s hearing.  We do not accept that appropriate disclosure has not taken place but we are prepared to consider the question of disclosure and evidence further.  We also accept that the period of time that would be taken in discussing issues of disclosure tomorrow would more likely than not extend the hearing even if it was to go ahead beyond one day.”

They then set out how they had discussed with the Claimant’s solicitors and agreed a time-table for the proceedings to go forward which involved the exchange of lists by 7 January, disclosure by 21 January, exchange of witness statements on 11 February and skeleton arguments to be exchanged 7 days before the hearing which they proposed should take place shortly after the beginning of March; they suggested that a bundle should be agreed in advance of the hearing, which they said they were prepared to finalise and provide.  They also indicated that they proposed to amend their Response to plead that, if Mr Eastwood were found to be an employee, he would have been made redundant in any event.

11.	As a result of the telephone conversation and of that letter, plainly both sides thought that the case was going to be adjourned; and the Claimant’s solicitors sent a fax immediately to the Tribunal, asking that their letter should be put before a Chairman and saying that there were issues of disclosure and evidence to be addressed by the parties.  They enclosed a copy of the letter from the Respondents indicating their consent and apologised for the late request for an adjournment.  Mr Mansfield on behalf of the Respondents submits that, by their letter of 13 December, the Respondent should not be taken to have been agreeing that they had not made proper disclosure and that they were not agreeing that the case was justifiably not ready but that they were faced with an application for an adjournment to which they thought it right, in the interest of costs and time, to consent.  The letter makes it clear, however, that they accepted that there were outstanding issues as to disclosure; and since (as we shall come to) there were other documents not yet disclosed at that time but which were disclosed subsequently, it would seem that they knew that disclosure was not in fact complete at that stage.  The case was, on any view, one in which they regarded it as sensible to adjourn and to proceed in the manner set out in the letter.  They did not say ‘Well we are ready and if you are not you go ahead and make your adjournment application.’

12.	The Chairman’s rejection of the application for an adjournment was communicated by telephone at about 3.30 or so on the Friday afternoon.  There is no decision letter and no reasons have been given or were expressed.  This was of course a case management decision. The Chairman was asked to reconsider later in the afternoon; but he again rejected the application for an adjournment, at some time after 5 o’clock.

13.	At 5.29 pm on 13 December the Respondents started to fax through to the Claimant’s solicitor a letter and accompanying documents; the fax ended at 5.44.  It has not been suggested that there was any phone call made to the Claimant’s solicitor before the fax to say ‘there is a fax coming, do not go’ or anything of that nature; and we are told that the Claimant’s solicitor had in fact gone by the time this fax started to come through.  Thus he did not see it then or at all until the next morning.  In that letter the Respondents said that they had decided to prepare on the basis that the Tribunal wished to continue with the hearing, that they would have incurred significant expense by the next morning in preparing bundles and they could not therefore support an application for an adjournment if made on the next morning.  They referred to enclosing the partnership deed, which is a substantial and weighty document, although we accept that not all of it would have had to have been examined in detail by the Tribunal, and to a witness statement of Mr Vesey which is about 5-6 pages and 30 paragraphs long.  It dealt with the matters in issue in some considerable detail.  

14.	None of that material in fact found its way to anybody representing Mr Eastwood on the evening or night of 13 December.  What had happened was that the Respondents had prepared a bundle for use the next day which was in 3 lever- arch files and which, it is clear, consisted not only of the documents which had been sent on 8 December but of a substantial number, (we do not know how substantial), of further documents, including the partnership deed.  Those bundles were couriered to the Chambers of counsel who was to appear the next morning for Mr Eastwood.  They were delivered not to her Chambers at Sergeant’s Inn but to the adjacent offices of Decherts at 8.52 pm and apparently picked up by Decherts’ security early the morning of 14 December and put behind the back door of Counsel’s Chambers, where of course it is unlikely that anybody picked them up for some time; whatever happened, they were certainly not seen by counsel, or Mr Eastwood’s solicitor or Mr Eastwood before they all arrived at Croydon for the hearing on the morning of 14 December, counsel having gone to the Tribunal straight from home.  Between 9.45 and 10 o’clock counsel was given and saw for the first time the bundles, the partnership deed, Mr Vesey’s witness statement, a skeleton argument and a list of authorities; none of those matters had she ever seen before.  The bundle was not indexed and was not paginated; so we have been told.  It either included or there were delivered with it, as we have been told by Mr Mansfield, a number of documents in the important Category 4 which we have described earlier which, it is accepted, had not previously been seen by or on behalf of Mr Eastwood.  It was in those circumstances that Miss Watson on behalf of Mr Eastwood applied to the Tribunal on the morning of 14 December for an adjournment.  The application was resisted by Mr Hillier QC on behalf of the Respondents.

15.	It is agreed that counsel for Mr Eastwood took the Tribunal, through the history from the correspondence as we have described it and submitted, firstly, that there had been incomplete, partial and late disclosure and that all relevant documents needed to be put before the Tribunal in order for them to decide the preliminary issue which was a mixed question of law and fact and that, in order for matters to be adjudicated upon properly and fairly, there must be full disclosure.  The history, as we have said, was gone through including the history of the way in which the documents had came out, how Mr Eastwood had had very little time to look at the documents and how various documents had only been received that morning.  It was pointed out that the application for a postponement was only made the previous day after the Respondents had said that they would give voluntary disclosure and had sought to dissuade Mr Eastwood’s side for making an application but had then not disclosed everything that there was to disclose. 

16.	In effect what counsel was saying was that Mr Eastwood’s representatives had been given a very substantial amount of material very late in the day and that they could not properly present Mr Eastwood’s case.  Mr Hillier put forward submissions to the contrary which are recorded in the Tribunal’s decision and which is not necessary to go through, save to mention one point.  Mr Hillier QC said that he had spoken early on 13 December to Miss O’Rourke, counsel originally instructed by Mr Eastwood (who indeed has been Mr Eastwood’s counsel today before us), and knew from that point that she was not going to be available for the hearing on 14 December.  Some point about counsel’s availability had been made in one of Mr Eastwood’s solicitor’s letters; but Miss Watson responded to that by saying that Mr O’Rourke, if she had been there, would have made the same application; and it does not appear that Miss Watson was putting forward the change of counsel as one of the reasons on the basis of which she was asking for an adjournment.

17.	The Tribunal came to their conclusion for the reasons set out in paragraph 15 of their judgment.  They said this:

“15.   The Tribunal took into account the submissions of both parties and considered the fact that the ET1 was presented to the Tribunal 12 October by the Claimant.  Notice of hearing for the pre hearing review was dispatched to the parties on 18 November 2004.  At no time had either party made a request for an order for discovery of documents nor were the Tribunal informed that there were problems with disclosure or discovery of documents nor was there any request for an order compelling either party to produce or deliver up any documents in order to prepare a bundle.  This is despite the fact that all parties had been more than adequately legally represented at all times.  It was also noted that Counsel was not available for the hearing today.  However it was noted that it was quite clear that Counsel would not be available days before the hearing.  It was more than adequate time for the Claimant to instruct other Counsel in order to adequately represent him on the partnership matter.  The first time the request to postpone was made was yesterday morning and this was refused by Mr Warren.  In the light of that refusal we see nothing that leads to the conclusion the request for postponement should be granted.  There is no reason why witness statements could no have been produced albeit in draft or outline for the purposes of this hearing.  We are aware of the overriding objective under regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2004 and part of that overriding objective is to deal with the case “expeditiously and fairly” and with a view to “saving expense” with this in mind we refuse the application for a postponement as the issues in this case are clear and the parties had more than adequate notice in order to prepare for this hearing.  However we did take into account that some of the documents may not have been seen by the Claimant we therefore allowed [the] Claimant 10 minutes in order to look through the documents and to see if there were any documents that he was not aware of.”

What happened next was that counsel for Mr Eastwood had to withdraw because she was only instructed to deal with the request for an adjournment.  The Respondents then invited the Tribunal to dismiss the proceedings, which they did; and they ordered Mr Eastwood to pay £2,000 towards the Respondents’ costs.

The Law
18.	We turn very briefly to deal with the relevant law.  In Carter v Credit Change [1979] IRLR 361 the Court of Appeal allowed an appeal against the decision of the Employment Appeal Tribunal which had reversed the decision of the Employment Tribunal granting the Respondents an adjournment, .Stephenson LJ, at paragraph 18 of his judgment, said this:

“… I do not regard it as the function of this Court, or the function of the Employment Appeal Tribunal, to approve the exercise of the Industrial Tribunal’s discretion to postpone.  All the Employment Appeal Tribunal has to do is to see whether there is an error in law and they can only do that, it seems to me, in accordance with the guidance given by the precedents of the Employment Appeal Tribunal in other cases: they must look to see whether there is anything wrong in law with the decision, and whether it is so surprising that something must have gone wrong with it and that it could be characterised as perverse or a decision which no reasonable Tribunal could have come to.”

For today’s purpose Mr Mansfield and Ms O’Rourke agree that there is no difference between perversity and a decision to which no reasonable Tribunal could have come.

19.	The Court of Appeal considered the principles relating to adjournments more recently in the case of Teinaz v London Borough of Wandsworth [2002] ICR 1471.  In that case the Court of Appeal upheld the Employment Appeal Tribunal’s decision to reverse the Tribunal’s refusal of an adjournment and the case was decided after the Article 6 of the European Convention of Human Rights had become effective in domestic law and it was a factor which formed the part of the arguments before the Court of Appeal in that case.  Dealing with the matter as speedily as we can, Peter Gibson LJ at paragraph 16 referred with approval to the recognition in the Employment Appeal Tribunal that the Employment Tribunal has a very broad discretion in relation to questions such as adjournment but that the discretion must be exercised judicially and that requires the Tribunal to take into account; any matters which should be taken into account and at paragraph 20 he continued:

“… 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: ….  The appellate body, in concluding whether the exercise of discretion is thus vitiated, inevitably has to make adjustment 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.”

20.	We would inter pose that the consequences of the refusal to adjourn in this case, when it was plainly being said on Mr Eastwood’s behalf that he could not properly present his case on the vital issue which the Tribunal had to decide, were potentially severe.

21.	At paragraph 21 Peter Gibson LJ said that the litigant’s right to a fair trial under Article 6 of the European Convention demands nothing less than the grant of an adjournment in the case of somebody whose presence is needed for the fair trial of a case.  The case with which we are today dealing is not a case of somebody being absent for illness or any other reason, it is a case in which it was said not that Mr Eastwood was absent but that he was not equipped to present his case properly; but it seems to us that the same principles apply.  Peter Gibson LJ went on:

“…the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.”

22.	We have also taken into account what was said by Arden LJJ in particular.  She said, at paragraph 44, that Article 6 which guarantees to everyone in the determination of his civil rights and obligations the right to a fair and public hearing did not add very much to the argument in that case, but underscored the need to approach applications to adjourn on the grounds of an applicant’s health with great care.  We would suggest that the same applies to an adjournment on the grounds of the impossibility of a proper and just presentation of a case.  It is accepted by both parties to this appeal that Article 6 points up the importance of fairness and justice but add nothing to the principles of fairness and justice with which the common law is wholly familiar in this type of case.

23.	Finally in relation to authority we need to refer speedily to an unreported decision of the Employment Appeal Tribunal in Mid Yorkshire Chamber of Commerce & Industry Ltd v Miss G Cornforth EAT/0385/03 in which an adjournment had been refused; that refusal was the subject of an appeal, heard by His Honour Judge McMullen QC.  By the time of the hearing before him, the parties were agreed that there should be an adjournment; and the learned judge said that in those circumstances it would require very compelling reasons for the case to be driven forward.  Of course in this case such agreement as there had plainly been that there should be an adjournment had been withdrawn; but the fact that there had been an agreement which was only withdrawn after the Chairman had refused the adjournment on the previous day was, in our judgment, plainly relevant.

24.	We approach this case taking all the guidance in Teinaz, Cornforth and Carter into account and with full knowledge that we can only interfere with the Tribunal’s decision on the very limited basis set out in the authorities.  We acknowledge that we must not approach this appeal on the basis of asking ourselves the question ‘Well, what would we have done?’ because that would be to substitute our exercise of discretion for the exercise of discretion of the Tribunal; on the contrary, as was said in Teinaz, we must give all due deference to the Tribunal’s decision; and we have done so.  We accept too that in so far as perversity is argued – as it is - such an argument cannot succeed unless an overwhelming case is made out; we must have it clearly demonstrated to us that the decision was one which no reasonable Tribunal could make or one about which we feel we must say ‘my goodness that was wrong’, see Yeboah and Crofton [2002] IRLR 638 and Hereford and Worcester County Council v Neale [1986] IRLR 634 (CA).

Our Conclusions
25.	Miss O’Rourke submits that the Tribunal in this case took into account irrelevant factors, failed to take into account relevant factors and in any event reached a perverse decision; Mr Mansfield submits that they did not make any of these errors.  At this late stage we do not propose to go through all the arguments of both parties.  We have heard them and taken them all into account.  We have concluded that, in a number of important respects, the Tribunal did err by failing to take into account relevant facts and by taking factors into account which were not properly factors to be considered or were factors of no real weight and that overall the decision is one which was perverse.

26.	It may be that it is very rare for the Employment Appeal Tribunal to come to the conclusion that there has been a perverse exercise of a discretion on an adjournment application; and we are fully aware of the narrow confines of perversity; but we have reached the clear decision that the conclusion reached by the Tribunal to refuse an adjournment was a denial of justice and was a conclusion which no reasonable Tribunal could have reached.  We are satisfied that it has been overwhelmingly demonstrated that that was so and that the expression “my goodness me, that must be wrong” applies to this case.

27.	The background (and we certainly do not propose to go through the history again) is that neither party had done anything as between themselves (we do not know what was going on within their own halls) prior to 2 December.  Although we understand and accept that Mr Eastwood as the Claimant had to establish his case, the reality here was that most of the documents (although not all of them, as Mr Eastwood plainly had some) were in the hands of the Respondents; and although there was no order for disclosure it has not been suggested that the Respondents could, if there were numbers of relevant documents, simply produce them on the morning of the hearing; trial by ambush has long since gone.  From 2 December onwards we have described the history and how it came about that on the morning of 14 December the various documents and items which we have described were handed for the first time to Mr Eastwood’s team.

28.	In our judgment the Tribunal failed in considering what should then happen to take into account the following factors.  Firstly, they failed to take into account, for their decision does not reflect that they did, the complexity of the issues or issue which had to be decided.  It is correct, as Mr Mansfield said, that this was only an unfair dismissal claim with a capped limit on compensation (he did not expressly use the word “only” but that was the thrust of his argument) but it was a claim of importance and substance to the parties; and the issue as to whether Mr Eastwood was an employee or a partner was not a matter which could have been decided with ease, as in less complex circumstances is often the case.  Difficult questions of law and fact arose to be considered and decided.  The issue could not be decided simply on what the Respondents contended were the governing documents because it was Mr Eastwood’s case that those documents did not reflect the reality of what was actually happening on the ground.  Mr Vesey’s witness statement made reference in substantial detail to various factors and various comparisons which went to show that Mr Eastwood was a partner, at least from 2002.  All those matters would have had to have been investigated.  In our judgement the complexity of the issue was a major factor which should have weighed in the decision of the Tribunal; but does not appear to us that they considered that as a factor at all.  Indeed they said towards the end of paragraph 15 that one of the reasons for refusing the application was that the issues were clear.  In considering perversity we regard this too as a very important factor indeed; but of course in considering whether the Tribunal failed to take factor into account, the weight that they gave it is neither here nor there.

29.	Secondly, we conclude that the Tribunal did not take into account the agreement between the parties of the previous day.  There had been not merely an agreement that there should be an adjournment; there was agreement which represented the view that, at the very least, there were outstanding matters of disclosure which had to be addressed and which were going to take some time to be addressed; there was an agreement that there should be a time table which, plainly, the Respondents regarded as appropriate to the fair disposition of the issue.  It is true that there had been no agreement at the beginning of 13 December; but the Respondents clearly recognised that an adjournment was likely on the basis upon which it was going to be sought.  That we regard as a very material factor supporting Mr Eastwood’s application.  There is no mention of that at all in the reasons given by the Tribunal in their decision.

30.	Thirdly, the agreement included provision for important steps such as witness statements, skeleton arguments and agreed bundles which would have enabled the Tribunal properly and fairly to deal with the case.  They certainly did not have the advantage of that, at least bilaterally, on the morning of 14 December; they had an un-paginated or partly un-paginated bundle which was not agreed, a skeleton argument on one side and a witness statement on one side.

31.	Fourthly, the Tribunal appear to have taken the view that the late provision of the bundle, including the late provision of documents that had not previously been disclosed, could be dealt with by counsel’s having a brief time to look at them.  The Tribunal do not seem to have factored into their decision the need for Mr Eastwood and his team to look through a three lever arch un-paginated or partly paginated bundle to sort out what documents in that bundle were or were not documents which had previously been disclosed, to consider the contents of any documents which had not previously been disclosed, for instructions to be taken upon them and matters of that kind if Mr Eastwood was going to be properly able to present his case and, to give evidence and if cross-examination of Mr Vesey was to be carried out in a proper manner.  The same applies to the need to consider the witness statement, the skeleton argument and the list of authorities.  

32.	Lastly, and the least of factors which we regard as important factors which the Tribunal failed to take into account is this.  The authorities on adjournments say that one of the matters which needs to be taken into account is whether there has been a history of previous delay and whether there is any urgency.  There was no history of delay in this case.  On 14 December the parties were before the Tribunal only two months and two days after the presentation of the Originating Application and one month after the presentation of the Response.  That is a remarkably speedy course towards justice; not only had there been no delay; matters had gone extremely quickly.

33.	Furthermore there was no urgency.  Nobody was saying that there was any urgency; and it is plain from the fact that the Respondents were on the previous day prepared to agree that there should be an adjournment and set out a time table for a hearing which should have taken place immediately after 1 March, as their letter of 13 December suggested that they did not regard the putting back of the resolution of the issue to March as delay which was prejudicial or which conflicted with the obvious desire of any Tribunal to make sure that justice was not unfairly delayed.  That factor also does not seem to us to have been considered by the Tribunal.

34.	We take the view that the Tribunal also took into account factors that should not have been taken into account.  Principal among these is what the Tribunal said about the decision that had been made the previous day by the Regional Chairman, Mr Warren.  We repeat that the Tribunal said this:

“The first time the request to postpone was made yesterday morning and this was refused by Mr Warren.  In the light of that refusal we see nothing that leads to the conclusion that the request for postponement should be granted.”

Mr Mansfield submits that the Tribunal was entitled to take into account Mr Warren’s refusal of the application, albeit he says that it would not have been of any great weight.  What appears to us to have happened from the words used by the Tribunal is that they took Mr Warren’s refusal of the previous day into account as something which had to be regarded as a factor against the grant of an adjournment on the following morning.  The words “in the light of that refusal we see nothing that leads to the conclusion that a request for postponement should be granted” are capable of meaning nothing else in our judgment.

35.	Miss O’Rourke submitted that the Tribunal appear, in the light of what had happened the previous day, to have been saying that there was a heavier burden on the Applicant than otherwise; and that does indeed appear to have been that of their approach.  If that was their approach, in our judgment it was mistaken for three reasons.  First of all, this was a renewed application and had to be decided on its merits.  Secondly, Mr Warren would not and could not have had before him anything other than the Originating Application, the Response, the listing letter of 14 November and the faxes which were sent to him by Mr Eastwood’s solicitors and would not have had the benefit of the much fuller information and the detailed submissions that were provided to the Tribunal on the following morning.  Thirdly the Tribunal did have the benefit of submissions and of knowledge of what had actually happened between the refusal of the adjournment and the hearing before them; and those matters were not taken into account and should have been taken into account.

36.	The Tribunal said later that the parties had had more than adequate notice in order to prepare for the hearing.  That was true; but the Tribunal appear to have failed to take into account that the dispute was not about whether the parties had had more than adequate notice in order to prepare for the hearing but whether there was inadequate and late disclosure and late provision of other material which meant, that, however long there had been to prepare for the hearing, Mr Eastwood’s position was one in which justice could not be done to his case to his case at the hearing by those who represented him.

37.	Further, the Tribunal referred to the overriding objective and said that cases need to be dealt with expeditiously and fairly.  The overriding objective, which, of course, it was correct for the Tribunal to consider and regard as important, is set out in Regulation 3 of the Employment Tribunals (Constitutional and Rules of Procedure) Regulation 2004.  Sub-rule 1 of that Rule provides that the overriding objective of the Regulations is to enable Tribunals and Chairmen to deal with cases justly; that emphasises the need to ensure that the application of the overriding objective achieves justice and that the exercise of a discretion under the Rules needs to avoid injustice.  They words “expeditiously and fairly” are only part of the general structure or objective which is that a case should be dealt with justly.  The Tribunal, in looking at “expeditiously”, appear to have failed to take into account that there had been no lack of expedition and that no real lack of expedition was contemplated for the future.

38.	For all of those reasons we take the view that the Tribunal took into account factors that it should not have taken into account, failed to take into account factors that it should have taken into account and that its decision cannot stand.  We need to go further because, as we have said, we regard the decision as in any event perverse.  The parties might be criticised for their lack of action before 2 December; but from that point on matters went in such a way that, as we have described, there was originally incomplete disclosure; Mr Eastwood’s side was asked not to seek an order; but incomplete disclosure nevertheless was made; and the documents which we have described were provided at the dates on which we have set out.

39.	We all take the view that, faced with the situation with which the Tribunal was faced on that Tuesday morning, the only proper course that could appropriately have been taken without causing an unfair denial of justice, considering all the points made on both sides, was to grant the adjournment that was sought.  For all the reasons we have set out and taking into account the weight that we think a reasonable Tribunal would have given to the factors that should have been taken into consideration and deleting the factors which should not have been taken into consideration, it is our view that only one fair result could have been achieved.  We conclude that the Tribunal on this very rare occasion came to a decision which was perverse in a sense that it was one to which no reasonable Tribunal could come.  For those reasons this appeal is allowed.

40.	The consequences are agreed.  It is agreed that, because the Tribunal ought to have allowed the application for an adjournment, the consequent decision to strike out Mr Eastwood’s claim and the order for costs against him must also fall; and thus the order, subject to what Counsel wish to say, must be that Mr Eastwood’s claim is remitted to the Tribunal for hearing of the preliminary issue.