United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 512_94_1010

Appeal No. EAT/512/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10 October 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J R CROSBY

MR R TODD

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BLEWITT LANDSCAPES LTD          APPELLANTS

MR F GARLICK          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants NO APPEARANCE BY

OR REPRESENTATION

ON BEHALF OF THE APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Blewitt Landscapes Ltd against a decision of an Industrial Tribunal held at Manchester on 27 April 1994. For Full Reasons sent to the parties on 10 May 1994 the Industrial Tribunal unanimously decided that the Applicant, Mr Garlick, was unfairly dismissed and the Respondent, Blewitt Landscapes Ltd was ordered to pay compensation to him in the sum of £11,614.

It appears from the Summary Reasons that Mr Blewitt, who is the Managing Director of Blewitt Landscapes Ltd, did not attend the hearing on 27 April, although notified as to the time and place of the hearing. No one else turned up on behalf of Blewitt Landscapes Ltd and the case was heard in the absence of the Respondent.

In those circumstances the Tribunal proceeded to hear Mr Garlick's case. Mr Garlick's case, as set out in his application presented on 22 October 1993, was that he had been unfairly dismissed from his position as a Foreman and that there had been unlawful deductions of wages. He had worked for Blewitt Landscapes Ltd on various sites, undertaking landscape gardening. He was the Foreman with the Landscape Gardening Section. A few weeks prior to his dismissal some of the employer's machinery was stolen. That led to difficulties as Mr Blewitt, the Managing Director, would not replace the machinery. On 27 August Mr Blewitt advised him in writing that he was dismissed for unsatisfactory work.

Mr Garlick's case was that none of the contractors for whom he had done work had any complaint. He complained that he was unfairly dismissed. The defence advanced in the Notice of Appearance by Mr Blewitt, on behalf of Blewitt Landscapes Ltd, was that Mr Garlick's work was consistently unsatisfactory and of an unacceptable standard. There were two written warnings and several verbal warnings.

The position at the hearing before the Tribunal was, that, in the absence of any evidence or argument on behalf of Blewitt Landscapes Ltd, the Tribunal concluded that the Respondent had not shown the reason for dismissal and therefore the dismissal was unfair. Even if a reason had been shown, the Tribunal concluded that they would still have found the dismissal unfair, because of the lack of consultation and failure to follow a proper procedure.

They assessed compensation and said this in paragraph 5:

"Having regard to his wage, skills and the current job market we find that it will probably be one year before he obtains full employment"

They referred to the evidence of Mr Garlick that, despite great effort to obtain fresh employment on his part, he had remained unemployed since the date of his dismissal. They included in the compensation to be paid to him an item of £5,668 for future loss, calculated on the basis of 52 weeks multiplied by £109. Mr Blewitt was dissatisfied with that decision and appealed by a Notice of Appeal dated 25 May 1994. The principal ground of his appeal was that the award of £5,668 for future loss was on the assumption that it would take Mr Garlick a year to find further employment. He said that that was conjecture. Many councils and commercial companies were advertising vacancies for gardeners and he included an example. He made a number of detailed points, including the fact that the decision made no reference to the written and verbal warnings given to Mr Garlick.

Mr Blewitt sent in a later letter on 10 June. Further to his Notice of Appeal he states that "Mr Garlick is now employed by Arthur A. Gents & Sons of Snipe Nurseries", and that substantiates the first item in his Notice of Appeal, that the award of £5,668 for future loss is unlawful and unjust.

We have considered these papers. Unfortunately, Mr Blewitt has not attended to explain his detailed arguments. We have considered the letters sent in along with his Notice of Appeal. We have reached the conclusion that there was no error of law on the part of the Tribunal in its decision on the assessment of compensation for future loss or in its conclusion that there had been unfair dismissal.

If there was an error in this case, it was an error on the part of Mr Blewitt in failing either to attend to contest Mr Garlick's case, or to arrange for someone to represent Blewitt Landscapes Ltd. We appreciate that a small firm may find difficulty in sparing the time for a Managing Director to attend. There may be difficulties in arranging for someone to represent them. But if, having been notified of the place and date of the hearing, a Respondent does not attend or arrange to be represented at a hearing, the Tribunal does not act in error of law in proceeding to decide the case on the basis of the evidence before them.

We see no arguable point of law which would justify a full hearing of this appeal. We would, however, point this out for Mr Blewitt's benefit. It is up to him to decide whether or not to take the matter further. Under the Industrial Tribunals Rules of 1993, Rule 11 the Tribunal has power, on the application of a party, to review any decision on a number of grounds. One ground (c) is that the decision was made in the absence of the party. This decision was made in the absence of Blewitt Landscapes Ltd; and (d) that new evidence has come available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing.

Mr Blewitt may be able to produce to the Tribunal evidence, along the lines stated in his letter of 10 June, that Mr Garlick has obtained other employment and that that may be relied on to falsify the calculations made by the Industrial Tribunal for future loss. If Mr Blewitt wishes to pursue an application for review, he must satisfy the Industrial Tribunal first, that there were grounds for his absence, or the absence of representation of his company, at the hearing on 27 April, and secondly, that he has new evidence which shows that the calculation of future loss was not done on the correct basis, that basis being that it would take probably a year before Mr Garlick obtained further employment. He will have to satisfy the Tribunal that they should extend the time for the grant of a review, which, under the rules, is 14 days from the date on which the decision was sent to the parties.

The Tribunal has jurisdiction in an appropriate case to extend the time for granting a review. This is in our view, not a case not for an appeal but, if the Industrial Tribunal is satisfied that the circumstances warrant it, for a grant of a review of the decision. For those reasons the appeal is dismissed.