United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE C SMITH QC: We had to consider whether we allow Mr Piwakowski to have leave to proceed to a full hearing of his appeal against the decision of the Employment Tribunal held at London (South) on 14 October 1998, whereby the Chairperson, Mrs Spencer, sitting with a full Tribunal, unanimously refused to allow a postponement of the hearing of the Tribunal on that day of the Applicant's claim for breach of contract and for unfair dismissal, although the position was that there is no doubt that the Applicant was severely indisposed, unfortunately, through a throat infection, and quite unable to present his case, and where he says that he only became aware on the Tuesday that he required a medical certificate.

The Applicant had already written a courteous and quite clear letter on the previous Sunday to the Tribunal. As soon as he became aware that he was required to provide a medical certificate he took the most urgent steps to obtain a medical certificate by managing to obtain a cancelled appointment with his GP so that by about 6.30 pm on the Tuesday he had a medical certificate in his hand. By that time the offices were closed but his wife was able to fax the medical certificate through to the Tribunal by about 9.30 am or perhaps a little earlier on the day of the hearing, and there is no doubt at all the medical certificate was in the hands of the Tribunal, as indeed the Tribunal itself records in paragraph 3 of its decision.

In our judgment, in those circumstances, although it is highly unusual for the Employment Appeal Tribunal to interfere with any decision under Rule 13 (7) of the 1993 Rules which deal with postponement of hearings, this is one of those cases where it may be an exceptional case, and where it is certainly arguable that this was an error of law on the part of the Employment Tribunal to refuse a postponement in those circumstances; if not an error of law then arguably a perverse decision.

We think it perhaps somewhat unfortunate that there was an implied suggestion that the Applicant might suffer in costs if he were to pursue the matter by way of a review. In all the circumstances here, we consider that justice demands that the Applicant be allowed to proceed to a full hearing of this appeal.

We hope, nevertheless, that it may be that once the full position is placed before the Employment Tribunal that the Employment Tribunal may take the view that they can deal with the matter satisfactorily on a review, on the basis that the matter be completely reheard before a different Employment Tribunal, albeit at the same Employment Tribunal centre. That would seem to be to us, on our consideration of the matter, and we bear in mind we have not heard what the Respondents have to say about the matter, an eminently sensible way of dealing with the matter and a most cost effective way of dealing with this unfortunate state of affairs.

JUDGE C SMITH QC:

EAT/1384/98

In the above judgment I have changed the name of the Industrial Tribunal to the Employment Tribunal. Hope this is okay.

Iris