United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 589_93_2406

Appeal No. EAT/589/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 June 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR R JACKSON

MR K M HACK JP

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ASLAM INTERNATIONAL FREIGHT LTD T/A EXPRESS ENTERPRISES          APPELLANTS

MR Z IQBAL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR O GHANTI

(OF COUNSEL)

Messrs Michaels & Co

Solicitors

1st Floor

271 Commercial Road

London E1 2PS


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal held at London North on the 6 May 1993. For reasons notified to the parties on the 26 May the Tribunal unanimously decided that the Applicant, Mr Z Iqbal, had been unfairly dismissed on the 23 March 1992. He was given a basic award of £990 and a compensatory award of £10,000.

Following the notification of the Full Reasons, the Respondents and former employers of Mr Iqbal, Aslam International Freight Ltd (trading as Express Enterprises), decided to appeal. A Notice of Appeal was signed by a firm of Solicitors, Michaels & Co., and dated the 6 July 1993. It was received in the Employment Appeal Tribunal on the same day.

This is a preliminary hearing of that appeal to decide whether or not the appeal raises an arguable point of law. This Tribunal only has jurisdiction to entertain appeals on points of law. If no arguable point can be shown at this preliminary hearing, there is no purpose in allowing the appeal to proceed.

Counsel instructed on behalf of Aslam International Freight Ltd has appeared today and has made a number of submissions as to why this case this be allowed to proceed. I will refer to those submissions in a moment. It is first necessary to provide a chronology of the case to understand points made by Mr Ghanti, on Mr Iqbal's behalf.

Mr Iqbal presented an application to the Industrial Tribunal on the 31 March 1992 complaining in the form of a question "Was I unfairly dismissed?". His complaint was that he was a delivery driver employed by Aslam International from the 28 March 1987 to the 23 March 1992, and that he had been patently unfairly and unlawfully dismissed in the circumstances which are set out in the details of his complaint. For today's purposes it is not necessary to examine the details.

The Company submitted a Notice of Appearance dated the 28 August 1992, naming, as the representative acting for it, a firm of Accountants in Hatfield, Reynolds, and specifically mentioning that the matter was under the attention of Mr Shah. In box 4 of the Notice of Appearance, in answer to the question "are the dates of employment given by the applicant correct?", box "yes" was ticked. So, there appeared to be no dispute as to the period of service which Mr Iqbal had rendered before his dismissal. The only point taken in resisting the application was that Mr Iqbal had been told to continue working, but had refused. It was asked "How can he claim unfair dismissal?".

Mr Iqbal's complaint came before the Industrial Tribunal on the 6 May 1993 after a number of delays and adjournments. The Notice of Appearance was filed outside the statutory time limit. An extension was granted to validate it. Shortly before filing their Notice of Appearance, Aslam International sought a postponement of the date that had been fixed for the full hearing. That was granted. There was a later request for a postponement at a later hearing date. That was granted on the grounds that Mr Shah, the Accountant representing Aslam International, was going on holiday.

This appeal arises out of the situation when the matter came on for hearing on the 6 May. The hearing date of the 6 May had been notified as long ago as the 20 September 1992. Mr Shah did not turn up to represent Aslam International on the 6 May, nor did any of Aslam's International witnesses, including Mr Aslam himself. Instead, a Mr Mannion, an independent consultant working with Mr Shah's firm of Messrs Reynolds, appeared. He was not in a position to give any information to the Tribunal other than that he had found a note from Mr Shah saying that Mr Shah was ill. We are told by Mr Ghanti that Mr Shah had suffered a bad asthmatic attack. No medical certificate was produced to the Tribunal, or has been produced even now. No statement, or affidavit, or letter has been produced from Mr Shah, Mr Mannion or Mr Aslam, about the circumstances in which only Mr Mannion was in attendance, and Mr Shah was absent, and Mr Aslam, and other witnesses he wished to call were absent.

The Tribunal were in a difficult position. They recorded in paragraph 6 of the decision that they had sympathy for Mr Mannion. He knew nothing about the case until he read the documents given to him that morning by the Applicant, who was represented by Mr Coy, from the Free Representation Unit. They recorded that Mr Mannion knew nothing about the illness afflicting Mr Shah and nothing about the facts concerning Mr Iqbal's dismissal by Aslam International. They therefore recorded that his contribution to the proceedings had been limited.

The Tribunal proceeded to deal with the case and after hearing evidence from Mr Iqbal, gave a decision in favour of Mr Iqbal.

The Notice of Appeal was put in, taking the point that the Tribunal was wrong in law in not adjourning the hearing of the 6 May. The comments of the Chairman of the Tribunal have been obtained. The point taken in the Notice of Appeal was this: that the Tribunal was wrong not to adjourn the hearing so as to ensure that when the matter was heard the Appellant was properly represented. The basis was that Mr Aslam believed that he would be represented at the hearing and had no way of knowing that, as things turned out, he was not. He had not therefore been allowed an adequate opportunity to have his case properly heard.

The letters from the Regional Office of Industrial Tribunals and from Mr Walker, the Chairman, comment that Mr Mannion did seek an adjournment, having explained his position to the Tribunal. The adjournment was refused because the Members of the Tribunal considered that the conduct of Aslam International in the past with regard to hearing dates had not been entirely satisfactory. The Tribunal did not accept that Mr Shah was unable to attend, but felt that he was evading his responsibilities. In those circumstances the Tribunal decided to go ahead with the hearing on the basis that they would use Aslam International's Notice and other documents as Aslam International's evidence.

The Chairman supplemented that explanation in a further letter to the Employment Appeal Tribunal in which he stated that the Tribunal had been informed by Mr Mannion that he had found the note from Mr Shah asking him to attend on behalf of Mr Shah who was ill, but Mr Mannion was unable to give any information as to what was wrong with Mr Shah. The impression of the Tribunal was that Mr Shah was evading attending the Tribunal.

In those circumstances Mr Ghanti has made two points. First, he says that the Tribunal was wrong in law in not granting an adjournment and in proceeding with the hearing in the absence of any effective representation of Aslam International and in the absence of Mr Aslam and his witnesses at the hearing. Mr Ghanti has drawn our attention to the decision of Priddle v Fisher [1968] 3 All E.R. 506 where the Divisional Court interfered with the decision of a Tribunal to make a determination of a redundancy claim in the absence of a party and in the absence of representation.

The case is authority for the proposition that the Industrial Tribunal had a discretion as to whether or not to adjourn, and that there must be a proper exercise of a judicial discretion. Lord Parker said that a Tribunal should exercise a discretion judicially and properly in all the circumstances. In that case, the Divisional Court came to the conclusion that the exercise of the discretion had been on wrong principles. That raised a question of law that gave the Divisional Court jurisdiction to interfere. The Court was satisfied in that case that a substantial wrong had been occasioned by the failure to adjourn. A party had been deprived of his right to support his claim by evidence and argument.

In this case we have listened carefully to the concise, careful arguments which Mr Ghanti has advanced, but we are unable to find any error of law, or principle in the way in which the Tribunal exercised its discretion to refuse an adjournment. Under the Rules the Tribunal had power to control and regulate its own procedure, including whether there should be a postponement or adjournment of a hearing; Rule 12 of the 1985 Regulations (then in force).

The Tribunal were entitled in law to refuse an adjournment. There had been two previous adjournments. No satisfactory explanation was given as to why Mr Shah was not present to represent Aslam International and as to why Mr Aslam, and any other witnesses, were not present to deal with the matter. We are reinforced in the view that the Tribunal exercised its discretion correctly by the fact that there is still absent from the papers in this case any evidence relating to Mr Shah's medical condition, or any explanation from Mr Aslam and Mr Mannion as to why Mr Aslam and the witnesses for Aslam International could not be present at the hearing. There is a complete absence of explanation to this Court, as well as to the Industrial Tribunal, of the circumstances which arose.

We also mention that a firm of Solicitors has represented Aslam International for nearly a year now. No attempt, so far as we are able to see, has been made to provide the sort of explanations necessary to get this appeal off the ground. We also note that it would have been possible under the Industrial Tribunal Regulations for Aslam International to seek a review of the Tribunal's decision under Rule 10. One of the grounds of a review is that a party was absent, or a person entitled to be heard was absent, from the proceedings at which the decision was made: Rule 10(1)(c). No application for a review was made. We are not aware of any reason why such an application was not made.

The second ground raised by Mr Ghanti on the appeal can be dealt with more shortly. He submitted that the Tribunal erred in law in assuming jurisdiction to hear the case when the facts were that Mr Iqbal had not been employed by Aslam International for a period of 2 years prior to the date of bringing his claim. Attached to the Notice of Appeal is a P45, for the purpose of showing that there had been a break in the continuity of Mr Iqbal's service, that he had left the service of Aslam International on the 1 February 1991 and resumed service a few days later, so that he would not have served for 2 years continuously down to the 23 March 1992 when he claims he was dismissed.

We are unable to regard this as raising a point of law. The position before the Industrial Tribunal at the hearing on the 6 May was that, according to the IT3 completed by, or on behalf of, Aslam International, the dates of employment given by Mr Iqbal on his IT1 had been agreed. They showed a period of employment continuing over a period of 5 years. No attempt appears to have been made between the signature to the IT3 on the 28 August 1992 and the hearing on the 6 May 1993 to amend that agreement on the dates of employment.

In those circumstances there was no error of law on the part of the Tribunal in exercising jurisdiction. The facts which appeared before them to be agreed were that there were more than 2 years continuous service. In those circumstances we have fail to see how either of the points ably made on behalf of Mr Ghanti raise any arguable point of law. This appeal will accordingly be dismissed at this stage.