Brighouse Group Holdings Ltd v Bourne

An Employment Tribunal considering an adjournment must apply the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 overriding objective. Fairness must be assessed for both parties and in the round. The Employment Appeal Tribunal may intervene only for an error of legal principle, including omission of an essential relevant matter, or for perversity. It must not reweigh the discretionary factors itself.

Case-management reasons need not address every potentially relevant consideration. They may properly be brief and proportionate. A Tribunal may proceed in a party’s absence where an adjournment has been refused, no renewed application is made, and no material explanation is provided.

The claimant brought claims arising from the termination of his employment, including unfair dismissal and breach of contract. A pre-hearing review determined that Brighouse Group Holdings Ltd was his employer.

The Employment Judge listed the merits hearing for 9 November 2012 and allowed the company until 1 October to identify any difficulty with that date. Its later application for a postponement gave no meaningful detail of the managing director’s asserted business commitments. On 8 November the application was refused, but the company was expressly permitted to renew it at the hearing.

No representative attended on the following day and no renewed application was made. The Employment Judge proceeded in the company’s absence. The company appealed both the refusal of the adjournment and the decision to hear the case.

1. Appeals dismissed. The first Employment Judge applied the correct test by considering whether postponement was just under the overriding objective in Regulation 3 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. The assessment required fairness to both parties, not simply the asserted unavailability of the company’s managing director.

2. Applying Transport for London v O’Cathail, [2013] ICR 614, the EAT held that it could not substitute its own assessment of the discretionary factors. Intervention was available only for an error of principle or perversity. Failure to consider a matter is material only where it was essential to consider it; the EAT does not reweigh every potentially relevant factor.

3. The reasons sufficiently showed that the Judge had considered the lateness of the decision and the imminent hearing. She balanced the company’s position against the claimant’s preparation, costs and need for a fair hearing. The absence of proper particulars of the business commitment was significant. Her course of refusing the application while allowing renewal at the hearing was a fair solution. Short case-management reasons were adequate; they did not need to catalogue every submission.

4. The second Employment Judge was entitled, and plainly right, to proceed under rule 27(5) of the Employment Tribunal Rules of Procedure. The further letter gave no material information, made no express renewed application, and no one attended despite the invitation to renew. Beswick Paper v Britton was distinguishable because its requirement to consider adjournment followed an explained non-attendance without advice on requesting one. A review remained the appropriate remedy for any injustice caused by absence, but the company supplied no further explanation at the review hearing.

• Employment Appeal Tribunal: dismissed the employer’s appeals from the refusal of a postponement and the decision to proceed in its absence: [2013] UKEAT 0098_13_1109.
• Employment Tribunal: refused the postponement on 8 November 2012, subject to renewal at the hearing, and heard the claims in the employer’s absence on 9 November 2012. A later review made a modest reduction to compensation on a minor issue.