Northern Diver International Ltd v Ward

An appeal hearing may be adjourned where proceeding on newly introduced material and additional grounds would deny the opposing party a fair opportunity to respond. The Appeal Tribunal must balance that fairness against delay, prejudice to both parties, and the effect on other tribunal users under the overriding objective.

Permission may be given to replace a notice of appeal so that its grounds are clearly expressed and confined to identified arguable issues. Directions for an Employment Judge’s notes should ordinarily be a fallback where the parties cannot first agree what evidence was given below.

The employer appealed against the Liverpool Employment Tribunal’s decision allowing its former employee’s unfair dismissal claim. The appeal had passed the sift stage and was listed for a full hearing on a pleaded perversity ground.

Shortly before the hearing, the employer filed a replacement bundle containing further documents and sought to advance a reasons challenge and a contributory-fault challenge. The employee was unrepresented and absent, and had not had an opportunity to answer the new material. The Appeal Tribunal also rejected a suggested time-bar objection because the appeal had in fact been lodged in time.

The issues were whether the hearing should be adjourned, whether the notice of appeal should be amended, and whether the Employment Judge’s notes should be directed.

1. The hearing was adjourned and permission to amend was granted. It would have been unjust to proceed on the replacement bundle, counsel’s addendum, and unpleaded additional grounds when the unrepresented employee had no opportunity to address them.

2. The Tribunal recognised that a day-of-hearing adjournment should not be granted lightly. It causes delay and uncertainty, particularly for an employee who had succeeded below, and affects other tribunal users. Nevertheless, the additional reasons and contributory-fault grounds were prima facie arguable. The employee had incurred no attendance or representation costs on the day, this was the employer’s first adjournment application, and the overriding objective favoured an adjournment.

3. The employer could file a substituted notice of appeal limited to three grounds: the re-expressed perversity ground, the reasons challenge, and the contributory-fault point. The employee could then file an amended or substituted answer.

4. A direction for the Employment Judge’s notes was refused at this stage. The parties should first seek agreement as to the evidence and matters occurring at the hearing below. The Judge’s notes were a longstop measure only if agreement could not sensibly be reached.

5. The appeal was restored for a future half-day hearing, with standard directions. The Tribunal also invited the parties to consider whether negotiation could resolve the appeal proportionately.

• Employment Appeal Tribunal: the employer’s appeal from the Liverpool Employment Tribunal was adjourned before substantive determination. Permission was given to substitute the notice of appeal, and the matter was listed for a further hearing.
• Liverpool Employment Tribunal: the former employee succeeded in a claim for unfair dismissal. No citation for that decision was stated in the judgment.