Lunn v Aston Darby Group Ltd

Section 128(5) of the Employment Rights Act 1996 permits postponement of an interim relief hearing where special circumstances justify it. The provision does not require circumstances to be exceptional and does not remove the Employment Tribunal’s discretion.

Urgency and the need for parties to make themselves available remain important. However, the Tribunal must identify and assess all relevant circumstances in light of the overriding objective. Difficulties obtaining alternative representation at short notice, particularly where counsel was instructed under a direct access scheme, may amount to special circumstances. A short delay, absence of prejudice to the opposing party, and the need to preserve equality of arms and save expense may justify postponement.

The Claimants brought whistleblowing claims against Aston Darby Group Limited and Mr Heywood and applied for interim relief. The Employment Tribunal listed the applications urgently for 27 February 2018.

The Claimants’ barrister, instructed under the Bar Council direct access scheme, had an unavoidable court commitment. He sought relisting on dates beginning only a few working days later and explained that the Claimants could not obtain suitable alternative representation at short notice.

The Employment Tribunal refused the application, construing section 128(5) of the Employment Rights Act 1996 as prohibiting postponement absent special circumstances and treating counsel’s conflicting commitment as insufficient. The central issue was whether that approach wrongly elevated the statutory threshold and fettered the Tribunal’s discretion.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and replaced by an order allowing postponement. The applications were to be urgently relisted by the Regional Employment Judge.
2. Interim relief applications must ordinarily be heard and determined with due expedition. Section 128(5) makes clear that ordinary inconvenience or the convenience of the parties is insufficient. It nevertheless permits postponement where special circumstances exist.
3. The word “special” does not mean “exceptional”. Section 128(5) informs the exercise of the Tribunal’s discretion but does not remove or prohibit that discretion. The Tribunal therefore erred by applying an unduly restrictive construction and by failing to assess the relevant circumstances.
4. The relevant circumstances included the very short period before the listed hearing, the Claimants’ instruction of counsel under the direct access scheme, the resulting difficulty in securing alternative representation, the short proposed delay, and the apparent absence of prejudice to the Respondents.
5. The overriding objective under Rule 2 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 was material. It supported consideration of equality of arms, proportionality, flexibility, avoidance of unnecessary delay and saving expense. On the particular facts, the Claimants faced substantial prejudice if required to proceed unrepresented, while the Respondents faced no apparent comparable prejudice. Refusal was therefore perverse.

• Employment Tribunal: The Tribunal refused the Claimants’ request to postpone and relist the interim relief hearings, communicated on 20 February 2018.
• Employment Appeal Tribunal: The appeal was allowed. The decision was set aside and substituted with an order allowing postponement and urgent relisting.