United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR COTTER (of Counsel) E.L.A.A.S


 


MR JUSTICE MORISON (PRESIDENT): This is an application by Miss Kullar who seeks to appeal against a decision of an Industrial Tribunal which refused her application for a review of a decision which the Industrial Tribunal had arrived at in her absence.

The purpose of this hearing is to determine whether an arguable point of law has been shown in this case in relation to the tribunal's decision not to review their earlier previous decision.

The grounds on which this application is made are that there was confusion as to the first hearing date, which is why Miss Kullar did not attend for the listed hearing. There was confusion in relation to a change in the composition of the Industrial Tribunal. There was also a hitch over information which had apparently been provided to the Industrial Tribunal but had some how become lost. There was a failure by the Industrial Tribunal to make witness orders for which Miss Kullar had applied; and, it was suggested, there was a problem about the listing of the case, which added to the confusion.

There was unquestionably a visit by Miss Kullar on 16th January to the Industrial Tribunal offices, that is the day fixed before the three day hearing which was due to commence on 17th, 18th and 19th January.

As a result of those confusions, she said she did not attend the hearing which was due to take place on 17th January, and on that occasion the Industrial Tribunal said that there were three courses which they could now take. The first was to adjourn; the second was to hear the case in her absence; and the third was to dismiss the case by reason of her non-attendance, giving her the right to ask for a review under Rule 11(1)(c) of the Industrial Tribunal Rules. They opted for the third course, and accordingly, they dismissed her application, making it plain that she had 14 days in which to request a review.

She did ask for a review. The matter came before the Industrial Tribunal again on 29th March 1996.

On that occasion, the Industrial Tribunal having heard from Miss Kullar, decided that they would not grant the review. They say in paragraph 4 of their decision not to grant the review, that they were still puzzled as to how the applicant came to be in a state of confusion about what was actually going to be happening on 17th, 18th and 19th January. They noted that during January she had made various attempts in writing for the matter to be adjourned. They continue:

"I reviewed the file and made the order as I saw fit at that time that the matter was to proceed to a hearing on 17 January, since the dates had been set aside, and also that any representation that the applicant wished to make could be made before the full tribunal. So she understands it, that is an order I make probably seven times a week at least; it is standard, no special for her case. It is allow the party the chance to argue their corner out in the open, not in letters."

He then referred to the fact that the applicant was regular visitor, and refers to conversations with tribunal staff. He concludes in the decision, that the applicant was warned that if she did not attend, the matter could be disposed of. That decision was communicated some time towards 5 o'clock on the evening of 16th January, but we have absolutely no doubt by the morning of 17th January she knew about it. How do we know? Because there was a telephone conversation, when Miss Kullar spoke to the Acting Regional Secretary. She was told and left in no uncertainty that the matter would proceed. Her reply was quite simple, that she would not be attending and she would wait the tribunal's written decision. She did indeed attend later that day to get the written decision. She was told what the situation was.

What is said by Mr Cotter, to whom we are grateful, who has been instructed through the ELAAS scheme to represent Miss Kullar today, is that the point of law which he wishes to argue, is that the tribunal should have given Miss Kullar the opportunity to challenge the tribunal's notations on the file, made on the basis of what the staff were saying because it was apparent that what they had to say conflicted with what she believed the true position to be. In particular, she wished to challenge the fact that there had been a telephone conversation on the morning of the hearing.

We have listened to that submission with care. It seems to us, having very carefully reviewed the file, that looking at communications which were unquestionably sent to Miss Kullar and ignoring disputed internal notes, and which were unquestionably sent by her, the Industrial Tribunal was entitled to reach the conclusion which it did; that there was no satisfactory explanation for her non-attendance on 17th January, and that she knew perfectly well that the case was going to take place on that day. The evidence in support of that conclusion, can be seen from the file of papers which is before us, which, as I say, we have reviewed with care.

It is be noted first of all, that on 23rd October 1995, Miss Kullar's then solicitors, asked that the hearing which was then fixed for 26th and 27th October be treated as an interlocutory hearing because they were seeking certain orders. The matter came before the tribunal on 26th October, and on that date an order was made pursuant to Rule 4(1)(a) of the Industrial Tribunal Rules of Procedure 1993, which ordered the applicant, Miss Kullar, to specify precisely the matters she was complaining of, and the statutory provision to which each complaint was made. There was a warning contained at the end of that order that failure to comply might result in the whole or part of her application being dismissed before or at the hearing.

On 27th October 1995, there was a letter from the Industrial Tribunals to Messrs McGrath & Co, saying:

"Your client attended the hearing on 26 October 1995. On her application the hearing was adjourned to enable the applicant to fully instruct you to attend the full hearing of the case and represent at that hearing. The hearing has been arranged for 17, 18 and 19 January 1996 at 9.45 am. each day. ..."

The letter also indicated that certain other matters had been dealt with, including the order that I have just referred to.

Miss Kullar then wrote protesting at the suggestion that she should or might become responsible for paying costs in a document which is undated, but which was copied to the respondents' solicitors. She asked for an extension of time with which to comply with the tribunal order on the grounds that she was not going to be readily available to deal with the matters. There was a further letter of 3rd November 1995 from the tribunal to her then solicitors, saying:

"As we have not heard from you following my letter of 27th October the case remains listed for hearing on 17, 18 and 19 January 1996."

On 8th December 1995, she indicated to the respondents' solicitors that she was trying to prepare her case for the forthcoming hearing by gathering evidence from the university. That letter was copied to the Industrial Tribunal.

Thereafter, I can summarise the position in this way: that Miss Kullar did not comply, as I understand it, with the order for particulars which had been made by the Industrial Tribunal, but was aware of the fact that a three day hearing was due to take place in January 1996. I refer to her letter of 20th December 1995, (page 48 of our bundle) and to her undated letter which was also in December referring to an Industrial Tribunal hearing on 17th, 18th and 19th January, (page 51 of the bundle).

Messrs McGrath & Co replied to the tribunal by letter dated 20th December 1995, saying that they had received no communication from her since her expected return from India, but that they had however, received the copied correspondence.

On 28th December 1995, the Industrial Tribunal wrote to Miss Kullar at her address, saying:

"I am instructed to inform you that your letter delivered on 20 December 1995, ... and an undated letter have all been received.

...

The only reason the hearing arranged for 26 and 27 October 1995 was adjourned at your request was to enable you to instruct Messrs McGrath & Co."

Miss Kullar wrote again on 11th January 1996. By a letter of the same date from the tribunal, she was told:

"... that you must provide the information requested in our letter dated 28 December 1995 before your witness order requests can be considered."

As we understand the position, the Industrial Tribunal was refusing to grant any witness order for the hearing on 17th, 18th and 19th January 1996, until after she had complied with the previous order made as to the provision of particulars.

On 15th January 1996, a letter was sent to Miss Kullar, thanking her for letter of 15th January 1996, and informing her that all the information requested in their letter of 28th December 1995 "will be required before witness orders are issued", and notifying her that the hearing on 17th, 18th and 19th January 1996 was going to be taking place.

There is then a very long letter in the file from Miss Kullar, which is directed to the Chairman of the Industrial Tribunal, and refers to the letter of 15th January 1996, and to a conversation in which she said she was told by a Paul Sargent from the tribunal, that further information was required before witness order requests could be dealt with.

She came to the Industrial Tribunal's offices on 16th January, that is common ground, and the hearing took place on 17th January 1996. I do not refer, as I have already indicated, to the internal notes from the Industrial Tribunal, because of the nature of the dispute.

Against that background it seems to us perfectly clear that on the documents which are not in dispute, the Industrial Tribunal were entitled to conclude that there was no real excuse for her non-attendance on 17th January 1996. That being so, when it came to the question of a review, the first question they would have asked themselves is what was the explanation for her non-attendance. It is right, and of course it is right, that the interests of justice demand that people who have genuine complaints, like, we are prepared to accept, Miss Kullar, should have their day in court. But there is a limit to the help which an Industrial Tribunal can give to prospective litigants. It seems to us that the Industrial Tribunal have set aside three days for the hearing, that it was reasonably clear to anybody that the hearing was going to take place on that day, and that if Miss Kullar wished to apply for an adjournment she should have appeared on that day and asked for an adjournment and explained to them why she needed it. It seems to us most regrettable that what has happened in this case should have happened, because I have no doubt that Miss Kullar has been left with a burning sense of grievance, which a day in court would have perhaps gone some way to removing.

However, we our a court of law, we cannot accede to application unless there is an arguable point of law disclosed. For the reasons which I have shortly given, without doing full justice I think to the full facts of the case, I am of the view that there is no arguable point of law, and that therefore the appeal should be dismissed at this stage.