Michael Paulin appeared for the successful Appellants in the Employment Appeal Tribunal in an interlocutory appeal in Lunn v Aston Darby Group Ltd & Or UKEAT 0039/18/BA, concerning the correct statutory interpretation of “special circumstances” in s.128(5) ERA 1996.
Accepting the Appellant’s submission, HHJ Eady QC held that the Tribunal had fettered its discretion and applied a higher standard then the statutory test. While applications for interim relief must be heard promptly, a “special circumstance” justifying a postponement within the meaning of s.128(5) could include the inability to instruct new lawyers who were available on the date in question. In the circumstances, the Appellant’s submission that it had been perverse to refuse the application in this instance was justified, and the appeal was allowed. The ET’s decision was accordingly set aside and substituted by an Order that the hearing be postponed.
Read the judgement here.