United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr N Dugdale (Of Counsel) Instructed by: Mr T Miranda Messrs Titmus Miranda Solicitors 2 Coldharbour Lane Denmark Hill London SE5 9PR
For the Respondents	Mr N Mitchell (Of Counsel) Instructed by: Messrs Douglas Wignall & Co Solicitors 44 Essex Street Strand London WC2R 3JF


 


JUDGE PETER CLARK:

1. This position in this case is as follows: The Appellant, Mr En'Wezoh commenced these proceedings complaining of unfair dismissal against his former employer the London Forum Hotel Ltd by an originating application presented on the 3 December 1996. He had been employed at the hotel as a car park attendant from August 1993 until his summary dismissal on 21 October 1996. The claim was resisted. The Respondent said that he had been dismissed for gross misconduct.
2. The matter came on for hearing before an Employment Tribunal sitting at London (North) under the Chairmanship of Mr G Flint on 2 February 1998. The case then continued into the 3 February 1998 and after the luncheon adjournment on that day, the Appellant failed to re-appear. He sent a message that his child had been rushed into hospital and that he had to attend to that. The Employment Tribunal adjourned the case to the following day the 4 February. Still the Appellant did not attend, citing the same reason. The case was then adjourned until the 14 July, with a direction that the Appellant produce by the 27 February a letter from the consultant at the hospital treating his daughter, confirming the date of her admission to hospital and that her illness was sufficiently serious to warrant the attendance of both parents.
3. The Appellant submitted a letter from his General Practitioner, Dr Maung dated 25 February, stating that his daughter Lisa attended the surgery on the 3 February suffering from recurrent tonsillitis and was referred to an Ear Nose and Throat Surgeon at King's College Hospital. Mrs En'Wezoh also attended the surgery apparently suffering from sore throat with a cough due to upper respiratory tract infection and both were treated with anti-biotics and advised to rest at home.
4. On 14 July the Employment Tribunal decided that the Appellant had not had complied with their direction as to medical evidence and dismissed the case under rule 13(2)(d) of the Employment Tribunal Rules of Procedure. It appears from their reasons that there were other grounds for reaching that conclusion. They added, although they had not heard the Appellant give evidence, nor any witnesses on his behalf that it appeared to them on the basis of the Respondents' case advanced during the first day and a half appearing that the Appellant's dismissal was fair.
5. Against that decision, promulgated with extended reasons on 6 August 1998 the Appellant appealed. The appeal was permitted to proceed to a full hearing by a division of this Tribunal, presided over by Mr Justice Morison, the then President on the 5 March 1999. Judgment was given on the 26 March and we note that at the end of the Judgment Mr Justice Morison said this.

"Accordingly we feel that justice requires that the appellant's complaint should be carefully investigated at an inter partes hearing".

He then gave directions for that hearing which is listed before us today, Notice of Hearing having been given on the 26 August.

6. It seems that the Appellant instructed solicitors who wrote to this Employment Appeal Tribunal on the 13 July. We are told by Mr Dugdale today who appears on behalf of the Appellant that an application was made for Legal Aid. That was initially refused. An Appeal was made against that refusal and following a successful appeal, a Legal Aid Certificate was issued on the 1 October, two weeks ago.
7. Yesterday this Tribunal received a fax from Solicitors, Titmus Miranda stating that they had written to the Appellant on the 1 October asking him to let them have the papers in the case, but that the letter was not received by him. In these circumstances, they requested an adjournment of today's hearing.
8. Asked for their comments Solicitors for the Respondent opposed the adjournment and consequently the parties were required to attend today so that the application could be renewed before us. Mr Dugdale tells us that he was instructed yesterday evening, he has read through the substantial bundle of documents which have been lodged by the respondent running to some 500 pages and the Employment Appeal Tribunal bundle in this case. He does not pretend to be in a position to have mastered the material for the purposes of advocating this appeal this morning.
9. There has of course been no skeleton argument lodged on behalf of the Appellant. Mr Mitchell vigorously opposes that application. He has sketched in some of the background to this matter which he says will be material to the proper determination of the appeal. He also refers us to the detail of the Respondents answer which sets out effectively what would have been contained in the skeleton argument and we shall treat that as standing as the Respondents skeleton argument in this appeal. We return to the final words of Mr Justice Morison at the preliminary hearing. It seems to us with considerable reluctance that we cannot do justice to this case in the circumstances which Mr Dugdale finds himself in.
10. That is of course no reflection on the Respondent which has behaved properly throughout. But with, as I say considerable reluctance, we have reached the conclusion that the proper course in this case is to adjourn this appeal. We shall direct that 14 days before the restored date for the hearing of the appeal, the Appellant lodge a skeleton argument setting out his case on appeal, a copy to be provided at the same time to the Respondent.