United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 451_94_2311

Appeal No. EAT/451/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 November 1994

HIS HONOUR JUDGE J BULL QC

MR K M HACK JP

MRS E HART

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MR R RICE          APPELLANT

MR G DENNIS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE

For the Respondents MR PETER REDMAN

(Solicitors)

Messrs Palmers

19 Town Square

Basildon

Essex

SS14 1QL


 


JUDGE J BULL QC: This is an appeal by Mr Rice against the decision of an Industrial Tribunal sitting at Bury St Edmunds on 11 January 1994, against its refusal to review an application made to them. The decision was sent to the parties on 28 March 1994.

This appeal and indeed the application has an extended history. It was on 25 November 1991, that an Originating Application was made to the Industrial Tribunal by Mr Dennis, the Applicant. Notice of Appearance was entered within time, namely on 18 December 1991 by Mr Rice, the Respondent. Thereafter, on 27 May 1993, it is plain from the papers before us that the matter was adjourned until 16 June 1993 upon which date Mr Rice attended. There, a preliminary point of jurisdiction was decided against Mr Rice's contention and the Industrial Tribunal resolved that they had jurisdiction to hear the matter.

The matter was then listed on 6 October 1993, apparently that date having been chosen in order to avoid the holiday period. Mr Rice did not appear. The Tribunal therefore moved in his absence to hear the matter and found that the Respondent, Mr Rice had unfairly dismissed the Applicant, Mr Dennis and awarded compensation in the sum of £12,079 to Mr Dennis.

It was against that decision that Mr Rice sought a review. By a letter dated 1 November 1993 solicitors acting on behalf of Mr Rice, wrote to the Tribunal seeking a review upon the basis that the Applicant, Mr Rice had been involved in a motor accident and therefore, through factors beyond his control he was not able to attend the hearing.

The Chairman considered all the papers and the subsequent correspondence and he determined that the review application should go before the full Tribunal. That Tribunal was convened on 11 January 1994, when it heard evidence. From paragraph 4 of the reasons it is plain that the Respondent gave evidence at the review hearing to this effect: he had been on his way from his home to attend the Tribunal hearing when he had been involved in an accident with a lorry and had been prevented, because of that accident, from attending the hearing. It was plain to the Tribunal and they so found, that Mr Rice had not made any contact with the police. He asserted however, that the other driver had admitted liability, and there had been an exchange of details. His vehicle was taken back to his home later in the day and he saw a doctor concerning a whiplash injury to his neck on the next day and there was a note from the doctor to this effect.

There was no indication from the police that an accident had occurred and there were no witnesses to support the case. In paragraph 5 of their reasons the Industrial Tribunal say that this left them with a difficult factual dispute to resolve and accordingly, they reserved their decision and Mr Rice was requested to provide details concerning the accident, namely further documents of the place, date, time and extent of the accident, and the Tribunal decreed that if either party wished to a further hearing they could so request one.

To this invitation Mr Rice responded with two statements. One, from a Mr Dennis and one from a firm who were involved in the transportation of the Appellant's vehicle after the accident. The Tribunal therefore considered whether they were entitled under the rules to proceed. They considered the Industrial Tribunal Rules of Procedure 1993, and in particular Rule 10(1)(c) and 10(1)(e). These read in their material parts in the following way:

10 - (1) A tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that -[and I leave out those parts which are not material to this hearing]

(c) the decision was made in the absence of a party or person entitled to be heard; and

(e) the interests of justice require such a review".

In paragraph 7 the Tribunal set out their Reasons. They say and I quote:

"Both are appropriate. Although the wording of the Rule is that there is a power to review on the ground that the decision was made in the absence of a party, in the circumstances of the present case for the review to be granted it should mean that the decision was made in the absence of a party through factors beyond that party's control. The mere fact of absence in itself would not in the present case support a review application".

In paragraph 9 they set out the reasons in numbered sequence of the circumstances which raised doubts as to whether the Respondent was in fact prevented from attending for reasons beyond his control. Their conclusion in paragraph 13 was:

"If we had been satisfied that the respondent was involved in an accident and could not attend the hearing for reasons beyond his control, then we would have allowed the review application".

They having thus considered the matter, decided that they would refuse to review the application.

Before this Employment Appeal Tribunal Mr Rice did not appear. He had been notified on 21 October 1994, that this case was to be heard today and indeed, the list showed that the case was marked not before 11.30 am. It was just after 12 noon that, having considered the matter we unanimously decided to proceed to hear the appeal in the absence of Mr Rice. It is now 25 minutes past two and we have again delayed giving our decision in this matter in order that if there were some reason why Mr Rice was prevented from attending the Tribunal, we could hear him if necessary, break-off and re-commence this matter, having heard argument and considered any representations that he might make. He has for whatever reason, not attended the Employment Appeal Tribunal today. Nonetheless, we consider the grounds of his appeal.

The Notice of Appeal asserts that the Industrial Tribunal erroneously imported "beyond his control" into Rule 11(1)(c) of the Industrial Tribunal Rules of Procedure 1993 and based their decision upon these erroneously imported words and there is a similar allegation in respect of Rule 11(1)(c).

It is further contended that no reasonable Tribunal could have reached the decision on the evidence before it that the Appellant was not involved in an accident on his way to the Tribunal hearing on 6 October 1993 and fourthly, that no reasonable Tribunal could have concluded that having been involved in a car accident on his way to the hearing, the Appellant failed to attend the hearing for reasons beyond his control. Finally, there is the assertion that the interests of justice, require such a review.

We have been referred to the case of Morris v Griffiths [1977] ICR 153, a decision of this Tribunal which varies substantially to facts of the instant case, but we are content to accept the one sentence summary which is to be found in Harvey on Industrial Relations and Employment Law, volume 3 at page 547 where it is condensed to this phrase:

"An applicant for review under this head [meaning of course rule 11(1)(c)] must show good cause for his absence. We would add only this. There is no mandatory provision that there should be a review under rule 11(1)(c) in every case where there is an absence of one of the parties and it is plain to us that the law is, and has been, that in order to found a review under this head there must be shown good cause for absence".

It is plain that this is the view which was taken in the careful decision reached by the Industrial Tribunal because of the passage cited from paragraph 13 of their Reasons that had they been satisfied that the respondent had been involved in an accident and thus could not attend for reasons beyond his control, then they would have allowed the application for a review.

We of course, cannot in any sense, re-try the facts of this matter. We are bound by the findings of fact made by the Industrial Tribunal. There is no question whatsoever of our reinvestigating the facts of this matter. It is equally plain that the initial words of the rule: "a Tribunal shall have power to review", import a discretion in the way in which that power shall be exercised. Provided such discretion is exercised judicially, it is not for this Tribunal to interfere.

We are unanimous in our view that this was a considered and most careful investigation into this matter conducted in a way which cannot be faulted. After a consideration by the whole of the Members with a further liberty for the Respondent to supply further statements of which he took advantage, the Industrial Tribunal unanimously came to the view that they were unable to entertain the application for a review.

We are satisfied that there was no error of law in this decision and we are again unanimous that in the circumstances of this case, this appeal falls to be dismissed and we so dismiss it.