Gillingham Football Club & Anor v McCammon

An appellate tribunal may interfere with a case-management discretion where the decision-maker has taken an irrelevant factor into account, including a material mistake of fact. The usual restraint applied to discretionary decisions does not protect a decision founded on such an error. Where the appellate tribunal has the necessary material, and the parties agree, it may determine the underlying application itself rather than remit it. A postponement may be justified where proceeding would make a fair hearing impracticable, particularly where a central party cannot attend throughout a fact-sensitive hearing. Costs may be ordered where a party has caused a postponement, without any finding of vexatious or unreasonable conduct.

The Respondents appealed against four Employment Tribunal decisions maintaining a five-day hearing listed for December. The proceedings concerned claims of unfair dismissal and race discrimination brought by a professional footballer against Gillingham Football Club and its chairman, who became an individual Respondent at the case management discussion.

The Employment Judges refused postponement applications partly on the basis that the hearing dates had been agreed and that the Respondents had failed to provide dates to avoid. The Employment Appeal Tribunal first considered whether the appellate threshold for interfering with a discretionary case-management decision was met, and then whether the postponement application should be decided afresh.

1. Appeal allowed. The four decisions of the Employment Judges, including the case management direction fixing the hearing, were set aside.
2. The appellate restraint applicable to discretionary decisions did not prevent intervention. The Employment Judge had treated the hearing dates as agreed, although neither the Club nor Mr Scally had agreed to them. That was a fundamental mistake of fact and constituted reliance on an irrelevant factor. The judge had otherwise considered relevant matters, including the holiday and possible delay.
3. The appeal was not out of time. The decisions were inextricably linked and formed one decision-making sequence. In any event, the exceptional circumstances justified exercising discretion to hear the challenge.
4. With the parties’ agreement, the EAT determined the postponement application itself. A remittal was unnecessary and deciding the matter immediately accorded with the overriding objective.
5. Proceeding with the hearing the following week was wholly impracticable. Mr Scally was a central individual Respondent and key figure in the Club’s case. The matter was fact-sensitive, substantial credibility issues arose, and a limited attendance or video link would not provide a satisfactory hearing. Although the Claimant required a speedy remedy, justice could not be done by starting the trial in those circumstances.
6. The postponement application was allowed. The parties were directed to agree dates for a continuous five-day hearing at which the parties and necessary witnesses could attend.
7. Costs of £1,250 plus VAT were awarded to the Respondent under rule 40(1) in the Employment Tribunal and rule 34A(2)(c) in the EAT. The award was justified because the Appellants had caused the postponement, without requiring pejorative conduct.

• Employment Appeal Tribunal: The EAT set aside the four Employment Tribunal decisions, allowed the postponement application, and awarded costs of £1,250 plus VAT.
• Employment Tribunal: Employment Judges Vowles and Druce refused successive applications to postpone the five-day hearing and maintained the listing.
• Employment Appeal Tribunal: HHJ Peter Clark initially considered the matter discretionary and found no reasonable prospect of success. The present hearing followed on an expedited basis.