City of London Corporation v McDonnell

An Employment Tribunal deciding an application to postpone a remedies hearing must engage with the material grounds advanced for the application. Although reasons for a case-management decision may be brief, they must enable the parties and an appellate court to understand the matters taken into account and whether the discretion was exercised judicially.

A refusal based only on the existence of a related appeal and the undesirability of delay is inadequate where the application also relies on short notice, counsel’s prior unavailability, a necessary witness’s unavailability, the scale and complexity of the compensation claim, and potential wasted costs. The proper course is to allow the appeal and remit the listing decision for fresh determination.

The claimant, a Senior Surveyor, succeeded in claims for ordinary unfair dismissal and automatic unfair dismissal under sections 98 and 103A of the Employment Rights Act 1996. The Corporation appealed the liability decision. A later remedies hearing was listed on nine working days’ notice.

The Corporation applied to postpone that hearing, relying on the limited notice, the unavailability of its counsel because of a prior judicial commitment, the unavailability of its senior HR witness, the substantial compensation claim, and the pending liability appeal. Employment Judge Hodgson refused the application and the reconsideration request, giving reasons focused solely on the existence of the appeal and further delay.

The Corporation appealed the refusal. The central issue was whether the Employment Judge had properly engaged with the grounds for postponement and given adequate reasons.

1. Appeal allowed. The Employment Judge’s refusal to postpone the remedies hearing could not stand. Although reasons for a case-management decision may properly be brief, the reasons given did not show that the Judge had considered the material grounds on which the application rested.
2. The application was not founded solely on the pending liability appeal. It raised short notice of the hearing, the prior unavailability of counsel familiar with a complex and high-value claim, the unavailability of the senior HR representative who had made a witness statement, and the risk of wasted time and costs. The Judge’s repeated statement that an appeal was insufficient reason to stop the remedies hearing, and that delay was not in the interests of justice, did not address those matters.
3. The EAT could not conclude that the refusal was perverse. On the procedural history, the Tribunal might legitimately have required the remedies hearing to proceed despite counsel’s unavailability. But it was necessary to engage with the reasons for postponement and explain their rejection, so that the parties and the EAT could see whether the discretion had been exercised judicially.
4. The question of when the remedies hearing should proceed was remitted to the Regional Employment Judge at Central London. The earlier reasons, particularly those given on reconsideration, demonstrated an unwillingness by Employment Judge Hodgson to approach the issue with an open mind. The parties could make fresh representations in light of the position as it then stood.

• Employment Appeal Tribunal: The Corporation’s appeal against the refusal to postpone the remedies hearing was allowed. The listing question was remitted to the Regional Employment Judge at Central London.
• Employment Tribunal, Central London: Employment Judge Hodgson refused the Corporation’s March 2018 application, and reconsideration request, to postpone the remedies hearing.
• Employment Tribunal, Central London: The claimant had previously succeeded on liability in claims of unfair dismissal, including a claim under section 103A of the Employment Rights Act 1996. A separate substantive liability appeal remained to be heard.