Storr v Cleanaway Ltd [1998] UKEAT 851_98_2210 (22 October 1998)

JUDGMENT PRELIMINARY HEARING © Copyright 1998 APPEARANCES For the Appellant Mr P Aliker (of Counsel) Captstick - Dale & Partners 8 High Street Brentwood Essex CM14 4BG JUDGE JOHN BYRT QC: This is a preliminary hearing of an appeal against a decision promulgated on the 12 June 1998, whereby the Employment Tribunal sitting at Stratford rejected the Applicant's request for an adjournment and went on to dismiss her application. The employee appeals. The facts of the case are quite shortly these; Mrs Store had left her employment on 6 September 1996 claiming that she had been constructively dismissed and therefore unfairly dismissed. She took out an Originating Application in September 1996 and Notice of Appearance was lodged on 16 October 1996. There was a first listing for hearing of the case on 28 October 1997. On that occasion Mrs Store, applied for an adjournment. The adjournment was granted and directions were given. The case was then listed again for hearing on 22 May 1998. Prior to that hearing date there had been an application for an adjournment made to the Duty Chairman, supported by a medical certificate. That was on the 9 May. The medical certificate which was tendered was one which had been obtained for the purposes of statutory sick pay and unemployment benefit for the DHSS. On that occasion it said that she was unfit for work for reason of a back condition. When the matter was before the Duty Chairman he intimated that this medical certificate was insufficient for the purposes of applying for an adjournment of a Tribunal hearing and gave advice that prior to the hearing on 28 May a better and more appropriate medical certificate should in fact be lodged. Suffice it to say that on 28 May, the matter came on for hearing. The Respondents were represented. There was no further medical evidence produced. There was an agent solicitor appearing on behalf of the Appellant who had been instructed just 20 minutes before. He was there only to make the application for the adjournment. When the adjournment was refused, he intimated that he was not properly instructed to conduct the hearing himself on the substantive matter. Further, the Tribunal was told that the Applicant had not complied with the directions which had been given on 28 October 1997. The Tribunal considered the whole range of matters, consisting of the length of time since the dismissal had taken place, the fact of the hearing on 28 October 1997, the lateness of the present application for an adjournment, the inadequacy of the medical evidence, the failure to comply with directions and the inconvenience, expense and uncertainty which the application caused for the Respondents. Having balanced all those factors together, the Tribunal refused the application for adjournment. They then went on to consider the case on the basis of the IT1 and the IT3. There was no written representations made on behalf of the Applicant on the merits of the case, and accordingly they dismissed the Applicant's application. That was under Rule 9, Subrule 3. In those circumstance, it was a matter of discretion for the Tribunal whether to grant the adjournment in the first place. If we are to disturb that exercise of discretion, there must have been something the Tribunal took into account which they should not have or which they failed to take into account when they should have. Having heard the application made on her behalf this morning, we do not see that there is anything more the Tribunal could have done when considering this application. The view of the original Tribunal seems to be confirmed by the fact that today the Appellant's representative comes before us asking for an adjournment of the preliminary hearing on the grounds that he has been inadequately instructed as recently as only yesterday. In all the circumstances we think there is no arguable point arising. It would be unfair to the Respondents to allow this matter to go on in this way any longer and accordingly we see no reason to disturb the discretion of the Tribunal. The appeal will be dismissed at this preliminary stage. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII