United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D OLUFEKO (Solicitor) Messrs Pascalides & Co. Solicitors 243 Gray's Inn Road London WC1X 8RB


 


JUDGE PETER CLARK: By an Originating Application presented to the Stratford Employment Tribunal on 4 February 1998, the Applicant, Mr Okponobi complained of breach of contract, racial discrimination and wrongful dismissal against his former employer, Holland & Barrett Retail Ltd and certain named employees of that company. The claims were resisted.

The matter was listed for a substantive hearing over 2 days beginning on 22 July 1998 at 10 am. The Respondents appeared by Counsel, apart from the second Respondents, Mr Mayes, who appeared in person, he having left the company's employment. Seven witnesses were present at the Tribunal on the Respondent's side. Witnesses also attended with a view to giving evidence on behalf of the Appellant.

The Appellant's solicitor Mr Olufeko arrived late at 10.36 am, having telephoned in advanced to explain that he would be delayed, however the Appellant did not arrive. Eventually he contacted his solicitor on his mobile telephone, as a result of which Mr Olufeko applied to the Employment Tribunal for an adjournment on the basis that the Appellant had a child care problem; the childcare minder had not arrived and the Appellant was attempting to make alternative arrangements.

The Respondent invited the Employment Tribunal to exercise its powers under Rule 9(3) of Employment Tribunal Rules of Procedure and to dismiss the application.

Rule 9(3) provides:

"If a party fails to attend or to be represented at the time and place fixed for the hearing, the Tribunal may, if that party is an Applicant, dismiss or, in any case, dispose of the Application in the absence of that party of may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the Tribunal shall consider his Originating Application or Notice of Appearance, any representations in writing presented by him in pursuance of Rule 8(5) and any written answer furnished to the Tribunal pursuant to Rule 4(3)."

The Tribunal acceded to that application and, having considered the Originating Application under Rule 9(30, which it considered contained serious allegations and raised triable issues, dismissed the application on the basis that the Appellant was not present to prosecute his claim.

It then went on to hear and determine the Respondent company's counterclaim. Evidence was called by that Respondent. The Appellant's solicitor remained until 12.30pm when he said he felt unwell and did not return after the short adjournment. The case continued in his absence and was concluded at 2.20 pm. Judgment was then given in favour of the Respondent company on the counterclaim in the sum of £809.93.

Meanwhile the Appellant had attended at the Tribunal to discover that his case was over.

Against the various orders and decisions made by the Employment Tribunal in a decision with Extended Reasons promulgated on 29 July 1998, the Appellant now appeals. Various grounds are raised in his Notice of Appeal and the skeleton argument prepared by Mr Olufeko who appears on his behalf before us today.

As a result of the oral argument, Mr Olufeko applies to us to amend the Notice of Appeal to add two further grounds which may be formulated in this way. First returning to the words of Rule 9(3), the power to dismiss the Originating Application under that rule arguably only arises if a party fails to attend or to be represented at the time and place fixed for the hearing. The two are conjunctive not disjunctive. Here the Appellant was represented at the hearing. It is therefore arguable submits Mr Olufeko that the Tribunal had no power to dismiss the Originating Application under that rule as it purported to do. We think that point is arguable and are not aware of any authority on the precise meaning and affect of Rule 9(3) in circumstances where an Applicant fails to attend, but is represented on the day fixed for the hearing.

The second point which Mr Olufeko wishes to raise by way of amendment, relates to the Employment Tribunal's exercise of its discretion in refusing to postpone the hearing in circumstances where it had been informed that due to a transitory difficulty, that is the problem over childcare arrangements, the Appellant was delayed in attending the hearing. He submits that refusal to grant an adjournment in such circumstances has been held to be a wrong exercise of discretion entitling the Appellant Court or Tribunal to interfere, see Priddle v Fisher [1968] 3 AER 506; Masters of Beckenham Ltd v Green [1977] ICR 5155. We have considered those two arguments and concluded that both raise arguable points of law which ought to proceed to a full appeal hearing. We therefore accede to Mr Olufeko's application and direct that within 14 day, the Appellant submits amended grounds of appeal setting out those two grounds.

As to the original grounds of appeal, we are not satisfied that they raise any separate arguable point of law and in these circumstances we shall direct that upon leave being granted by me to amend the Notice of Appeal to add the two new grounds, the existing grounds will be deleted.

For the purpose of the full appeal hearing, we give the following directions. The case will be listed for two hours, category C, there will be exchange of skeleton arguments between the parties limited to the two points to which I have referred. Those skeleton argument arguments to be exchanged and copies lodged with this Tribunal not less than 14 days before the date fixed for the full appeal hearing.