Practice and Procedure – Postponement or Stay
Practice and procedure – postponement – hearing of interim relief application – section 128(5) Employment Rights Act 1996
The Appellants had lodged separate whistleblowing claims against the Respondents and had both applied for interim relief. They had instructed counsel under the Bar Council’s direct access scheme and he had advised them on their claims and had settled their respective particulars of claim attached to the ET1 forms. The ET had expedited the listing of the interim relief applications for a date on which the Appellants’ counsel had a prior court commitment; that was immediately drawn to the ET’s attention, the Appellants’ counsel applying for a postponement and re-listing of the hearing, explaining he was instructed on a direct access basis and the Appellants would be unable to obtain alternative legal representation for the interim relief hearing; and further offering a number of alternative dates, the earliest of which were within five working days of the existing listing. The ET refused the application, reasoning that a postponement of an interim relief application was prohibited under sections 128(5) ERA 1996, save where there were special circumstances and counsel’s convenience did not amount to special circumstances. The Appellants appealed.
Held: allowing the appeal
Although there were good reasons for the ET to list interim applications on an urgent basis and to expect the parties to make themselves available for the hearing at short notice – postponements only being granted where there were special circumstances (section 128(5) ERA), that did not mean that the Appellants had to demonstrate that the circumstances in question were exceptional and the ET’s construction of the statutory provision suggested it had set a higher standard than was in fact required and/or had unduly fettered its discretion. In the present case, it might not be exceptional for the Appellants to have instructed counsel on a direct access basis but it did mean that they were faced with a particular difficulty in obtaining alternative legal representation at such short notice. Having regard to the overriding objective – in particular, to save expense, to be flexible and to seek to ensure that the parties were on an equal footing – this gave rise to a special circumstance on the particular facts of this case. Moreover, given that it seemed the parties could make an alternative listing less than a matter of five working days after the existing date of hearing, it had been perverse to refuse the application in this instance and the appeal would accordingly be allowed and the ET’s decision set aside and substituted by an Order that the hearing be postponed.
Citations:
[2018] UKEAT 0039 – 18 – 2602
Links:
Jurisdiction:
England and Wales
Employment
Updated: 22 April 2022; Ref: scu.616876
