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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harewood and Upton Recreation Club and Instutute v. Bexon [2000] UKEAT 1366_00_0211 (2 November 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/1366_00_0211.html Cite as: [2000] UKEAT 1366_00_0211, [2000] UKEAT 1366__211

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APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT/
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK

1. The Applicant before the Leeds Employment Tribunal, Mr Bexon, was employed by the Respondent as their club steward from October 1992 until his summary dismissal in May 2000. Following that dismissal he presented a complaint of unfair dismissal to the Employment Tribunal on 28 July 2000.
2. A Notice of Appearance resisting the claim and dated 21 August 2000 was entered by advisers, instructed on behalf of the Respondent by their legal insurers, First Assist Group Ltd. The nature of the case was that the Applicant had been convicted of an offence of evading duty on tobacco and had been sentenced to a short term of imprisonment. The reason for dismissal was said to be some other substantial reason. There had been a breakdown in trust in confidence due to his criminal activities. The dismissal was fair.
3. In due course the substantive hearing of the complaint was listed for 3 November.
4. It appears from the Grounds of Appeal prepared on behalf of the Appellant employer that there then followed a dispute between First Assist and another organisation, DAS, which had taken over the Appellant's insurance policy. As a result, the case was not prepared for hearing, and directions given by the Tribunal on 9 September 2000 have not been complied with; in particular, the preparation of witness statements.
5. The dispute between First Assist and DAS was not resolved until 27 October. Papers were received by DAS on 31 October and dispatched to solicitors now instructed on behalf of the Appellant, Messrs Walker Morris (the solicitors). Those papers have still not arrived due to postal delays caused by flooding and a train crash in the Bristol area holding up the mail train.
6. In these circumstances the solicitors applied for a postponement on 1 November; that was refused by a Chairman, Mr Simpson, on the ground that the reasons given did not justify a postponement. The application was repeated and again refused on 2 November. Finally, a request for full written reasons was refused by the Chairman on the ground that his direction was not a decision within the meaning of the 1993 Regulations (see Regulation 2(2) ). I should say that that is correct. However, I have considered the appeal on the papers notwithstanding that it is unaccompanied by Extended Written Reasons (EAT Rule 39).
7. Interlocutory appeals are no different from appeals against substantive decisions. I have no general power of review of interlocutory orders; an appeal can only succeed where an error of law is made out. Medallion Holidays Ltd -v- Birch [1985] ICR 578.
8. In practice, that means that the Appellant must show that the Order refusing a postponement under Rule 13(7) was perverse in the Wednesbury sense. See Bastick -v-James Lane [1979] ICR 778, 782 per Arnold J, approved by the Court of Appeal in Carter -v-Credit Change Ltd [1979] ICR 908, 918F, per Stephenson LJ.
9. Thus the question for me is whether the Chairman's exercise of discretion in this case is perverse in any of the senses of that expression collected by Mummery J in Stewart -v-Cleveland & Guest (Engineering) Ltd [1994] IRLR 440, 443.
10. In my judgment it cannot be said that the Appellant passes that high hurdle in this case. It is, of course, through no fault of the Appellant that a commercial struggle between two sets of advisers under their legal insurance scheme has resulted in neither doing the work necessary for trial. But the Appellant is fixed with the default of those advisers. The Chairman had to balance their difficulties against the interests of the Applicant and the administration of justice generally to ensure a speedy resolution of this complaint. He decided, on balance, that the reasons put forward on behalf of the Appellant for a postponement did not outweigh the factor which I have mentioned in what is, on its face, a comparatively uncomplicated case. That cannot be said to be a wholly wrong exercise of discretion.
11. In these circumstances, having concluded that no error of law is made out, I must dismiss this appeal. I do so recognising that the order under appeal is not a final order, and that the application for a postponement may be renewed before the Employment Tribunal convened to hear the substantive case.