"Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."
That statement of the law was expressly approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 908 . See per Stephenson LJ at page 918F.
Mr Cox advanced five points in support of the perversity argument and invited us to say that the requirement for an adjournment was overwhelming. First, he said that the Applicant took the point that she may be disadvantaged if the Company went out of business as a result of any possible conviction of Mr Lee and he says that there is no evidence to support that submission; that it was merely unfounded supposition. Secondly, he repeats the point that if the present Order stands and the Industrial Tribunal hearing goes ahead on 23 November that there will be a rehearsal of Mr Lee's case and that will potentially prejudice him in the criminal proceedings. Thirdly, he says that there is a risk of adverse publicity, although the Chairman, in his reasons, refers specifically to Rule 13(6) of Schedule I to the Industrial Tribunal's Constitution and Rules of Procedure Regulations 1993 to which might be added the provisions of Rule 14. The anonymity of parties to sexual discrimination cases of this sort is a fairly recent innovation and although it does not provide total anonymity it goes some way towards meeting that concern. Fourthly, he says that any delay in this case will only be some three to four months and that is not to be regarded as excessive in a case where the originating application is dated August 1995. Fifthly, he says that if the criminal proceedings take place first and Mr Lee is convicted, that would, in practical terms, resolve the Industrial Tribunal hearing because the Company's position would then be untenable.
We have considered those submissions, both individually and cumulatively, but we are unable to say that they drive us to conclude that this Chairman's conclusion was perverse, in the sense that it was an impermissible option. He had to balance the factors advanced on both sides for and against granting a postponement of the Industrial Tribunal proceedings and, in our view, either result was permissible. We refrain from ourselves falling into the error of putting ourselves in the position of the Chairman and exercising our own discretion in the absence of an identifiable error of law.
In these circumstances this appeal must be dismissed.