United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS


 


JUDGE HICKS QC:

1. The appellant, Mr Bell, was employed by the respondent, Lancaster City Council, and brought against the Council a sex discrimination claim. The original date of hearing was postponed at his request. On the postponed hearing there was again no attendance by him. The tribunal caused a telephone call to be made, in the course of which Mr Bell first said that he had misunderstood the date but that explanation was , with some justification, rejected, because the date which he gave over the telephone as being the one he thought was the right one was on a day of the week which he had asked the tribunal to avoid because he could not manage that day of the week. When reminded of that, he said he had intended to withdraw his claim. He was asked to confirm that and did so by fax. On the basis of that fax withdrawing his application the claim was dismissed.
2. The respondents, Lancaster City Council, who had attended with witnesses and a representative, not surprisingly then made an application for costs on the basis that the matter came within Rule 12(1) of the Employment Tribunal Rules, in particular under the head of unreasonable conduct of the application by the applicant, Mr Bell.
3. The Employment Tribunal dealt with that application, accepted that there had been unreasonable conduct, accepted the submission and/or evidence of the Council that they had incurred costs over the £500 limit of the tribunal's jurisdiction, considered such information as they had about Mr Bell's means, which was very scanty but did suggest that he was working, and awarded costs in the sum of £200.
4. Mr Bell applied for a review of that decision. In his letter of application he accepted that his conduct of the application had been unreasonable for the purposes of the jurisdiction to award costs. He did not dispute, and it would be surprising if he had, that the Council had incurred costs exceeding £200. He did take issue with his ability to pay and gave some information about his means, in particular the precariousness of his employment.
5. The Chairman considered that application, which was advanced explicitly on the ground that the review was required in the interests of justice - that being one of the bases upon which a tribunal's decision can be reviewed. The Chairman dealt with the application and refused the request for a review, dealing with it on the basis that the application was under the head that the interests of justice required a review, although the Chairman sets out the grounds under which a review can be granted in Rule 11(1) of the Rules of Procedure, of which another head is that the decision was made in the absence of a party, and that of course applied in this case. The Chairman refused the application for a review, but his extended reasons amount in substance, it seems to us, to the conduct of a review, because the basis and the only real basis for Mr Bell's request was the question of his means and the Chairman reviews the information that Mr Bell has given about his means and comes to the conclusion that nothing in that application persuaded the Chairman that Mr Bell was not able to afford the modest costs awarded of £200.
6. The appeal before us is an appeal against that refusal to review the decision. It came on for a preliminary hearing before a panel of this Employment Appeal Tribunal on 29th March 1999, when Mr Bell did not attend, but the Employment Appeal Tribunal, as then constituted, considered the matter had to go forward for a full hearing substantially, it would seem, because of the Chairman's neglect to attend to the alternative ground for a review, namely Mr Bell's absence from the hearing at which the decision on costs was made.
7. The appeal therefore comes before us today for a full hearing. Mr Bell, again, is not present. He indicated his intention not to be present on the official form sent to him by this tribunal giving the date of the hearing. The Lancaster City Council is not present either, but has submitted written representations which, in substance, amount to its case on unreasonableness and on the amount of the costs which it has in fact incurred, neither of which is, as we understand it, in dispute or has been since the date of the original decision.
8. In our view, and in the absence of Mr Bell to support this appeal, it ought to be dismissed. It is indeed true that the Chairman in dealing with the application for a review neglected to give any reasons as to why he should not grant the application by reason of the ground of absence by Mr Bell from the first hearing and dealt with it only on Mr Bell's own case that a review was in the interests of justice. It is true also that it was in the form of a rejection of an application for a review, not a decision on a review itself. But in our view it would be pointless now to add yet a further hearing and further costs and expenses by remitting this matter for the Chairman to reconsider his decision on that application, when Mr Bell yet again has not attended and when, to our mind, the Chairman, although in form simply rejecting the application has in substance produced an adequately reasoned decision justifying the upholding of the original order. The appeal is therefore dismissed.