England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		20 June 2003

1. LORD JUSTICE MUMMERY: There are two matters before the court. The first is an appeal by Skelmersdale College against a substantive decision of the Employment Appeal Tribunal. The second is an application by Mr Roberts for permission to reinstate an application he made to this court for permission to appeal against a preliminary hearing of the Employment Appeal Tribunal in respect of the same matter. In accordance with directions which I gave when granting permission to Skelmersdale College to appeal, both these matters have been heard together. The college is represented by Mr Siddall. Mr Roberts has appeared in person.
2. Towards the end of 1999 and early 2000, Mr Roberts, a technician in the Media and Theatre Studios of the art department of the college, was dismissed on the grounds of alleged misconduct. His effective date of termination was 14 February 2000. On 25 February 2000 Mr Roberts commenced proceedings in the Employment Tribunal. According to his originating application, which was presented to the Liverpool Tribunal, his complaints ranged from unfair dismissal through breach of contract to staff discrimination and harassment. He details those complaints in box 11 of the IT1 originating application form.
3. There were ongoing problems in the lack of particularity and clarity in the presentation of Mr Roberts' claims. There were various hearings, which culminated in a directions hearing of 7 March 2001, at which all the claims, save for unfair dismissal, were struck out for want of prosecution.
4. The unfair dismissal claim was originally listed for hearing on 11 April 2001. On Mr Roberts's application the hearing was adjourned on grounds of his ill health. It was relisted for 13 June 2001. On 11 June 2001, Mr Roberts sent a fax to the Employment Tribunal saying that he had not received official notice of the hearing on 13 June. He had only learned of the pending hearing on 7 June when he received a communication from the college's solicitors.
5. On 12 June 2001 the parties were informed by the Employment Tribunal that the hearing would not be adjourned in advance of it taking place and that any application for a postponement would have to be made at the hearing. At about 12.30 pm on 12 June 2001 Mr Roberts informed the Tribunal's clerk that he was not sure that he would be able to attend on 13 June due to other commitments and that he was not prepared for a hearing. There was a later conversation Mr Roberts had with a different clerk.
6. On 13 June 2001 the Tribunal convened to hear the case. Mr Roberts did not attend and he was not represented. The Tribunal, exercising its powers under the regulations then in force, dismissed Mr Roberts's claim in his absence. The Tribunal relied on rule 9(3) of the Employment Tribunal (Constitution and Rules of Procedure etc) Regulations 1993 which was then in force, which has since been replaced by another rule, rule 11(3) which is in identical terms and is contained in the Employment Tribunal (Constitution and Rules of Procedure etc) Regulations 2001. I will return to the reasons that were given by the Employment Tribunal for following that course.
7. Mr Roberts then appealed to the Employment Appeal Tribunal. The Appeal Tribunal held a preliminary hearing on 22 April 2002, presided over by His Honour Judge Wakefield to determine whether Mr Roberts's appeal raised an arguable point of law. Only in so far as it did would it be proper for the appeal to continue. The judgment of Judge Wakefield referred to the decision which had been made and also to an unsuccessful application for a review. A notice of appeal had been placed before the Employment Appeal Tribunal running to 103 pages. It was mainly concerned with the merits of Mr Roberts's complaints. As Judge Wakefield observed, by reason of the events on 13 June 2001, there had never been a hearing on the merits. He said in paragraph 3 of his judgment that, looking only at the legal issues, the appeal should proceed to a full hearing in respect of what the Tribunal considered was the only arguable point of law; that is whether the Employment Tribunal had erred in law in dismissing the complaints under rule 9(3) of the 1993 rules "for his non-attendance".
8. Mr Roberts was dissatisfied with that decision. Although he had been allowed to proceed on a limited basis to a full appeal, he sought to appeal against the limitation of the grounds of his appeal to the Court of Appeal. His application for permission was ultimately struck out by Master Venne on 14 August 2002, not because the application for permission was out of time, but because Mr Roberts had not complied with the requirements of the Civil Appeals Office relating to the preparation and filing of bundles of documents in relation to the application.
9. On 9 September 2002, Mr Roberts issued another application for the reinstatement of his application for permission to appeal. That application has now been overtaken by events, although, as I mentioned at the outset of this judgment, it is still formally before the court.
10. On 25 September 2002 the substantive hearing of the appeal took place before another constitution of the Appeal Tribunal presided over by Miss Recorder Elizabeth Slade QC. The result, which appears from the judgment given by Miss Recorder Slade, is that there was a difference of opinion in the Appeal Tribunal about Mr Roberts's appeal. The majority concluded that the Employment Tribunal had not properly exercised its discretion and had erred in law in its application of rule 9(3). For that reason they allowed the appeal and ordered that Mr Roberts's application for unfair dismissal should be remitted to a differently constituted Employment Tribunal for hearing. The college applied to the Appeal Tribunal for permission to appeal, but the majority refused the application. I shall refer later in this judgment to the reasons given for that decision.
11. Following the Appeal Tribunal's decision, the college appealed to this court. They issued an application for permission to appeal which came before me on 4 February 2003. I granted permission to appeal. I also directed that Mr Roberts's application to reinstate his application for permission to appeal should be heard with the college's appeal.
12. Before turning to the submissions made by Mr Siddall and the points made by Mr Roberts, I should refer to the rule central to this debate. Rule 9 is concerned with the procedure at a Tribunal hearing. Rule 9(3) makes provision for cases in which a party fails to attend or to be represented. It provides:

"If a party fails to attend or to be represented at the time and place fixed for the hearing, the Tribunal may, if that party is an Applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the Tribunal shall consider his Originating Application or Notice of Appearance, any representations in writing presented by him in pursuance of Rule 8(5) and any written answer furnished to the Tribunal pursuant to Rule 4(3)."

13. It should also be noted that rule 10 provides that, in the case of any decision which is given, the Tribunal must provide reasons for its decision in a document signed by the Chairman. That clearly applies not only to decisions on the substantive merits of cases, but also to decisions, such as interlocutory decisions relating to directions for the preparation of the hearing and adjournments.
14. A number of points may be observed about rule 9(3). First, it confers on Employment Tribunals a very wide discretion to deal with cases (which are not uncommon) of when a party fails to attend or to be represented at the time and place which has been fixed. Secondly, if the absent party is the applicant, as was the case here, the Tribunal may, in its discretion, do one of a number of things: (i) it may adjourn the hearing to a later date; (ii) it may dismiss the application; or (iii) it may dispose of the application in some other way than adjourning it or dismissing it.
15. Thirdly, the rule does not impose on Employment Tribunals a duty of their own motion to investigate the case that is before them, nor does it impose a duty on them to be satisfied that, on the merits, the respondent to a case has established a good defence to the claim of the absent applicant. For example, in an unfair dismissal case where, as here, it is common ground that there has been dismissal, the burden of establishing the reason for the dismissal is on the respondent/employer. But, rule 9(3) does not require the Employment Tribunal to hear evidence from the respondent in order to determine for itself substantively the reason for the dismissal, or to satisfy itself as to whether, if the dismissal was for a potentially fair reason, it was fair and reasonable to dismiss the applicant/employee for that reason.
16. In the exercise of its discretion, the Tribunal would be entitled to require the respondent to produce evidence, but the rule does not impose any duty on the Tribunal to follow that course. The rule requires that, before exercising its discretion whether to adjourn the matter to a later date, to dismiss the application or to dispose of it in the absence of a party, the Tribunal must first consider a number of matters. Those matters all refer to documents that would be before the Tribunal, such as the originating application of the applicant, the notice of appearance of the respondent, any written representations which have been made to the Tribunal by the applicant, or any written answer furnished to the Tribunal under rule 4(3).
17. The fourth and final matter I would note is the requirement that the Employment Tribunal must give written reasons for its decision under rule 10. Whether the reasons it gives are adequate in any particular case must depend on the circumstances of that case, bearing in mind that the duty on the Tribunal to provide a written, reasoned decision is so the parties may know why they have won or lost the case. It should also be noted in this context that reasons are not defective simply because they fail to mention, or to deal with, every point that has arisen during the course of the proceedings or in the course of the hearing.
18. The general points which I have made are, in my judgment, supported by a number of authorities which have been referred to by Mr Siddall, as well as by the plain meaning of the language of rule 9(3). Those cases are: Retarded Children's Aid Society v Day [1978] ICR 437, in particular a passage in the judgment of Lord Denning at 443C-H; Chief Constable of Thames Valley Police v Kellaway [2000] IRLR 170, in particular paragraph 48; and Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, in particular paragraphs 14-16. I would also add a reference to the case, probably so well-known no-one needed to cite it, of Meek v City of Birmingham District Council [1987] IRLR 250, which lays down the test for determining the adequacy of reasons by given by an Employment Tribunal.
19. In the light of those general remarks, I turn to the issues which have been debated on this appeal. The jurisdiction of this court to hear appeals on points of law focuses on whether there is an error of law in the decision of the Employment Tribunal. The decision of the Employment Appeal Tribunal is of secondary importance, since it is simply the first level of appeal.
20. The decision of the Employment Tribunal was sent to the parties in extended reasons on 9 July 2002. Having stated the unanimous decision of the Tribunal that Mr Roberts's claim be dismissed pursuant to rule 9(3) of the 1993 rules, the Tribunal summarised the course of the proceedings. It started with the presentation of the originating application, summarised the various hearings which had taken place and dealt with directions, culminating in the striking-out order affecting everything except the unfair dismissal claim on 7 March 2001. Reference was made to the date when the matter was originally due to be heard and to the application by Mr Roberts for a postponement. Paragraph 8 is the crucial part dealing with the listing of the matter for a date when Mr Roberts failed to attend. It states:

"On 17 April (2001) it was relisted for 13 June 2001 an interval of almost eight weeks. Nothing was heard from the applicant until a fax was received by the Tribunal from him dated 11 June 2001. He contended that he had not received the Notice of Hearing and the first he had heard of the hearing was by receipt of a fax from the respondent dated 7 June 2001. In the course of conversation with a clerk on 7 June, which is incorrectly stated in his letter to be 7 July, Mr Roberts indicated that he had not received a letter sent by the Tribunal on 2 April 2001. He further contended that he had had problems receiving correspondence from the Tribunal and requested that all correspondence be sent 'Recorded Delivery'. It is be noted that Mr Roberts has from time to time during the course of the extensive correspondence concerning his case suggested that he has not received documents from the Tribunal which a perusal of the file suggests is rather unlikely."

Paragraph 9 refers to a fax of 12 June 2001 informing the parties that Mr Roberts's request for a postponement was refused, but added that:

"If the Tribunal were satisfied that the applicant had not received the Notice of Hearing, the case would be postponed and another date fixed."

Paragraph 10 refers to the telephone calls that took place between Mr Roberts and the Tribunal on 12 June 2001. The Tribunal stated that he was told that it was not possible for him to speak to the Chairman of the Tribunal as he had requested, and that he would have to attend the Tribunal on 13 June 2001 to request his postponement.

21. I now return to quote paragraphs 11 and 12 of the extended reasons:

"11. The applicant did not attend the Tribunal on 13 June. However, at 10.07am he sent a fax addressed to the Chairman, Mr Homfray-Davies, enclosing a letter he had received from the respondent's Solicitors on 12 June which included a list of the documents upon which they intended to rely at the hearing. He made no mention of the reason for his non attendance and made no further request for a postponement.

12. We considered the Originating Application, the applicant's summary of case, dated 27 November 2000, the Notice of Appearance, the amended Notice of Appearance, the chronology of events as set out above and rule 9(3) of the Industrial Tribunal Rules of Procedure 1993.

12.1 The applicant knew of the hearing.

12.2 He had been told twice on 12 June 2001 that the Tribunal would consider on 13 June 2001 whether to postpone the case, and that if Mr Roberts could satisfy the Tribunal that he had not received the notice of hearing in due time it would be postponed.

12.3 He failed to attend and did not provide any adequate reason for his non attendance.

12.4 We therefore dismissed the claim for his non attendance."

Those reasons were found to be wanting by the Employment Appeal Tribunal at the substantive hearing.

22. The Appeal Tribunal approached with great care a case like this in which an applicant had had his application dismissed without having a full substantive hearing. They examined in detail the course of the events which had led to the order of 13 June in Mr Roberts's absence. They considered the terms of rule 9(3) and the one authority to which their attention had been drawn, Mensah, and to which I have referred.
23. The Tribunal were divided. The reasoning of the majority is contained in paragraphs 18 onwards.

"18. The Tribunal in this case had before it a claim for unfair dismissal. The dismissal was admitted and in those circumstances the burden of proof was on the Respondent to establish the reason for dismissal and to show that it was an admissible reason. Thereafter the enquiry as to whether the dismissal was fair in all the circumstances attracted no burden of proof on either party but was a matter to be decided by the Tribunal upon the evidence before it.

19. In the judgment of the majority of this Employment Appeal Tribunal the Tribunal did not give adequate reasons for its decision to take the course of dismissing the Originating Application. The reasons for the dismissal of the Originating Application, such as they are, indicate to the majority that the reason for taking the course of action was the non appearance of the Applicant. Whilst paragraph 12 records that the Originating Application had been considered, the Decision gives no indication whatsoever as to why the Employment Tribunal, having considered the Originating Application and other documentation, considered it appropriate to adopt the course of dismissing the application without disposing of the application by other means such as inviting the Respondents (who were present) to lead their evidence and make submissions as to what the reason for the dismissal was and as to why the dismissal was fair in all the circumstances.

20. In the view of the majority, the documentation, referred to by the Employment Tribunal in paragraph 12, does not provide an obvious answer as to why the application should be dismissed. The reason given by the Respondent in the amended Notice of Appearance for the dismissal is this:

2. 'On 14 October 1999, the Applicant failed to collect the Respondent's minibus to undertake his agreed driving duty. A disciplinary hearing was held on 3 December 1999, at which the Applicant was accompanied by his trade union representative.

3. The Respondent was satisfied on the evidence available at the disciplinary hearing that the alleged behaviour of the Applicant had taken place. At that time, the Applicant had a current final written warning on his file (issued 27 August). The decision was taken to dismiss the Applicant and a payment in lieu of notice was made.'

It is to be noted that there appears to be no material to show the circumstances of the failure to collect the minibus, nor indeed any indication as to whether the current final written warning was for similar conduct or indeed for what type of conduct that warning was given.

21. In all the circumstances, and in the absence of any indication from the Tribunal in its Decision, as to why it took the course of dismissing the application, rather than disposing of the application by inviting or requiring the Respondent to give evidence and to make submissions on the matters which it was to consider, the majority considers that the Tribunal has failed to give adequate reasons for its decision."

So, the first reason given by the majority for allowing the appeal and remitting the matter to another Tribunal was inadequacy of the reasons given by the Tribunal. The second reason, that there had been non compliance with the rule, is dealt with in paragraph 22 as follows:

"Further, as to the argument as to whether Rule 9(3) requires 'due consideration', as is asserted in the amended Notice of Appeal, of the Originating Application and case summary, as a matter of construction we consider that the requirement to give such consideration is a statutory pre-condition to the exercise of the discretion and, since the requirement is there in the Rule, we consider that proper consideration has to be given to the documents there referred to. We do not consider that this is any gloss or addition to the language of the Rule, but that proper weight has to be given to its presence as a pre-condition of the exercise of discretion."

24. The Tribunal rejected an argument that the decision should be sustained on other grounds. They continued in paragraph 25:

"On the documentation before the Tribunal the fact that it would be the Respondents alone who would have given evidence and made submissions, does not necessarily mean that the Tribunal would have accepted that this was a fair dismissal in all the circumstances."

25. The views of the dissenting member are then noted. The dissenting member relied on the history of the proceedings set out in the decision of the Tribunal. He considered that the decision to dismiss the application was justified on the history of the case, and did not consider that the appellant had demonstrated that the Tribunal had erred in law in its application of rule 9(3). The case was then remitted.
26. Mr Roberts submitted that the Employment Appeal Tribunal majority decision was correct and that we should therefore dismiss the appeal of the college. He said in his voluminous written submissions, and emphasised in his oral arguments to us, that he had been denied a hearing. In his written submissions he referred to Article 6 of the European Convention on Human Rights and the right to a fair trial which is conferred by that Article.
27. In fact he did not have a trial at all. Everything relating to the dismissal of his claim had taken place when he was not there. He said that there were procedural errors by the Tribunal in disregarding, striking out or ignoring vital evidence in his case, both in the form of documents and evidence from witnesses. He said that the Tribunal had been treating his case in this manner from an early stage without properly investigating it.
28. Turning to the events of 13 June, he said that he had never received any official notification from the Tribunal about the hearing on 13 June. He considered that the faxes which he had sent to the Employment Tribunal about postponing the hearing were sufficient for him to cover the position. He referred in his documents, and again in his submissions, to the merits of his case. He addressed the authorities which I have cited, referred to by Mr Siddall, saying that they were decided on different facts. He went in some detail through the extended reasons of the Tribunal pointing out what he claimed to be factual errors. He summed up his case in a vivid phrase saying that "it had all gone off at a tangent"; that he had not had a proper determination of his claim; and that he had been unfairly dismissed for an alleged breach of duty that was not part of his job description.
29. Bearing all those points in mind, I turn to the principles on which this court acts when there is an appeal against an exercise of discretion. I have already mentioned that rule 9(3) confers a wide discretion on an Employment Tribunal. In reviewing an exercise of discretion, the Court of Appeal acts in accordance with the general principle that it has to be shown by the appellant that the Tribunal has either erred in principle in its approach to the case in the exercise of its discretion, or has left out of account or taken into account some feature which it should or should not have considered, or that it decision is plainly wrong because the court is forced to the conclusion that the various factors relevant to the exercise of discretion have not been fairly balanced in the scale.
30. Mr Siddall submitted that this was a case in which the Employment Tribunal had correctly exercised its discretion without committing any error of law, that it was the Employment Appeal Tribunal which had mis-interpreted and misapplied the provisions of rule 9(3) and had wrongly usurped the discretion of the Employment Tribunal in allowing the appeal and remitting it to a different Tribunal. In this case Mr Roberts failed to attend the hearing, even though he knew that it was taking place on 13 June. He knew that he had been refused any adjournment or postponement of the case in advance of the hearing. It had been made clear to him that, if he wished to obtain a postponement, it would be necessary for him to turn up to the hearing. He did not turn up and was not represented. He did not give the Tribunal adequate reasons for failing to attend to either present his case or to seek an adjournment. The Tribunal complied with the rule in considering the particular documents which are mentioned in the proviso to rule 9(3), and gave adequate reasons for its decision.
31. There has been some criticism in the Employment Appeal Tribunal and in the skeleton arguments of the way in which the Employment Tribunal concluded its extended reasons. In the final paragraph, 12.4, it said:

"We therefore dismiss the claim for his non-attendance."

32. If that were read in isolation, it might be understood that the only reason why it dismissed the claim was because Mr Roberts had not turned up. That is to ignore everything that goes before. The Tribunal had explained in the previous eleven paragraphs, and in paragraphs 12.1-12.3, the basis on which it was dismissing his claim. Mr Roberts did not attend which meant that rule 9(3) was engaged. In setting out the history of the proceedings, of the adjournments of the hearing and of the attempts to obtain an adjournment of the hearing of 13 June unsuccessfully in advance of that date, the Tribunal had clearly stated the background facts which were relevant to the way in which it exercised its discretion.
33. In my judgment, the Employment Appeal Tribunal ought, in those circumstances, to have dismissed rather than allowed Mr Roberts's appeal. The Employment Appeal Tribunal, not the Employment Tribunal, fell into error. The two errors of the Employment Appeal Tribunal (and I refer to the views of the majority) are, first, in unduly restricting the scope of the discretion conferred on the Employment Tribunal in cases to which rule 9(3) applies. The view seems to have been taken by the Appeal Tribunal that there was no discretion in the Tribunal on 13 June to dismiss the application of Mr Roberts for unfair dismissal, having considered the documents that 9(3) requires the Tribunal to consider. The thrust of the reasoning of the majority is that the discretion could only properly be exercised by requiring the college to give evidence and to make submissions in relation to matters to which the burden of proof was upon it; that is, the reason for dismissal, and also in relation to other considerations on which the burden of proof was not upon it, namely to consider whether the decision to dismiss was fair and reasonable.
34. In my judgment, that is a misreading of rule 9(3). The Employment Tribunal has a discretion to follow that course, but no duty is imposed upon it to do so. In a proper case it is entitled to exercise its discretion to dismiss the application, having considered the documents referred to in rule 9(3) without having to investigate further the evidence and the merits of the case. I also disagree with the views of the majority of the Employment Appeal Tribunal that rule 9(3) requires what is described as "due" consideration. That is a gloss on the wording of the rules. The word "due" does not appear. It is required to give consideration to the documents referred to in the rules. It is true that, as a pre-requisite of exercising their discretion, it must consider those documents, but, in my judgment, it is not required, though it may choose to do so, to hear evidence and submissions relating to whether the dismissal was fair or unfair.
35. Far from finding that the Employment Tribunal erred in law, I find that it acted within the discretion that was conferred upon it. It cannot possibly be said that its decision was plainly wrong, that it erred in principle, or that it acted on the basis of irrelevant material or left out of account relevant material. The errors of law in this matter are to be found in the decision of the majority of the Appeal Tribunal.
36. I would allow the college's appeal. The Employment Appeal Tribunal ought to have dismissed Mr Roberts's appeal rather than allow it. In my judgment there is nothing left in Mr Roberts's application to reinstate his permission application to appeal against the preliminary hearing decision in the Appeal Tribunal. Parts of his claim, other than unfair dismissal, had already been struck out by an unappealed order of the Employment Tribunal. Only his unfair dismissal claim survived. That was dismissed by order of 13 June 2001, which, as I would hold, was made in the valid exercise of the Employment Tribunal's discretion.
37. For those reasons, I would refuse to reinstate Mr Roberts's application for permission to appeal. It would be a pointless exercise. I would allow the college's appeal and refuse Mr Roberts's application.
38. LORD JUSTICE JONATHAN PARKER: I agree.
39. LORD JUSTICE SCOTT BAKER: I also agree.

Order: Appeal allowed. Mr Roberts's application for reinstatement be refused.

Mr Roberts to pay the appellant's costs assessed in the sum of £7,000 plus VAT.