British Security Industry Association v Brown

An Employment Tribunal must give reasons proportionate to the significance of a case-management issue. Reasons for a non-judgment decision may be short, but they must address the parties’ material points and explain why the result accords with the overriding objective.

A refusal to postpone is erroneous where the reasons do not engage with significant evidence of witness unavailability and the relevant listing history. The tribunal must have reasonable regard to parties’ availability when relisting, although availability is not the sole consideration.

The claimant brought proceedings for unfair dismissal. The respondent sought postponement of a two-day Employment Tribunal hearing after it was relisted for dates outside the period for which the tribunal had requested dates to avoid.

The respondent relied on the unavailability of its Chief Executive, who was also the dismissing officer, because of a longstanding and commercially important conference in Malaysia. Employment Judge Gaskell refused the renewed application in brief terms, stating that it had been considered by three Employment Judges and was refused for the reasons repeatedly given.

The respondent appealed against that case-management decision. The central issue was whether the stated reasons adequately addressed the application for postponement.

1. Appeal allowed. The Employment Judge’s refusal of a postponement was set aside. The hearing listed for 1 and 2 September 2015 was postponed and was to be relisted after both parties had been given an opportunity to provide dates of availability.

2. Case-management decisions attract wide latitude and will seldom raise an error of law. They must nevertheless be made in accordance with legal principle, take account of essential matters, exclude wholly irrelevant matters, and remain within the bounds of reasonableness.

3. Under Rule 62(4), reasons for a non-judgment decision may be very short. They must still address the material issues. The reasons given did not grapple with either the importance of the Chief Executive’s prior commitment or the fact that the hearing had been relisted without obtaining relevant dates to avoid after the earlier listing was vacated.

4. The question was not simply whether attendance at the conference was a voluntary choice, nor whether travel arrangements had already been made. The tribunal had to apply the overriding objective and explain why it was just to proceed despite the material witness’s absence. It did not do so.

5. A formal reconsideration application is available only in respect of a judgment. The proper procedural route for changing a case-management decision was an application under Rule 29 to vary the order.

• Employment Appeal Tribunal: allowed the respondent’s appeal, set aside Employment Judge Gaskell’s decision of 25 August 2015, granted a postponement, and directed relisting after consultation on availability.
• Employment Tribunal: Employment Judge Gaskell refused the respondent’s renewed application to postpone the hearing listed for 1 and 2 September 2015.