United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondents	MR T DE LA MARE (of Counsel) Instructed by: Ms G Scoular Messrs Mills & Reeve Solicitors Francis House 3-7 Redwell Street Norwich NR2 4TJ


 


MR JUSTICE MORISON (PRESIDENT): The case has been called on but the appellant has not appeared. He has not been in communication with the Employment Appeal Tribunal. Attempts were made to contact him yesterday without success. He asked for this appeal to be listed urgently and he was sent notice of the hearing on 11th May 1999. So far as we are concerned, the address at which he has been notified was the address he gave us. I am satisfied, therefore, that he is or should be aware of these proceedings, particularly having regard to the fact that he asked for them to be dealt with as a matter of urgency. The question then arises as to whether we should deal with this appeal in his absence. We are of the view that that would be the correct course to take, unless Counsel for the respondents was to argue to the contrary, in which case we shall listen to such argument.

This is an appeal against an interlocutory order of an Employment Tribunal which struck out the appellant's complaint against his employers. The complaint was brought under the Race Relations Act 1976 essentially. The reasons why it was struck out were:

(1) that the applicant had failed to comply properly with a number of interlocutory orders made against him requiring him to state with reasonable precision the nature of his case against employers, who are an employment agency; and

(2) because of the legal relationship between an employment agency on the one hand and its customer on the other vis-à-vis its employees who are seconded there.

The Employment Tribunal concluded that the appellant had failed to establish a cause of action against his employers. His claim against the people to whom he was seconded is currently before the Employment Tribunal.

It seems to us that looking at the Notice of Appeal the appellant has confined himself to the first part of the tribunal's decision, namely that his application should be struck out because it is non-compliant with orders for particulars, but that it does not advance arguments in relation to second reason given by the Employment Tribunal as to why his claim should be dismissed at an interlocutory stage, namely the legal relationship between his employer and Linklaters and Paines. To that extent, says Counsel, the appeal, in principle, is incompetent in the sense that even if his appeal on the striking out point on grounds of non-compliance were to succeed, the case would nonetheless be struck out because of the second reasons which was not being challenged.

Because of the fact that the case against Linklaters and Paines is due to proceed in the Employment Tribunal relatively soon, it was obviously sensible that this interlocutory appeal should be heard and determined as a matter of urgency. That was what the appellant himself was inviting us to do. He wanted this appeal to be heard as a matter of urgency and informed the EAT so when he lodged his Notice of Appeal. If we were to have concluded that he has a valid potential claim against his employers, the employment agency, and that he had properly complied with the orders which the tribunal had made, then, and only then, would it be appropriate to order that these particular respondents should have their case heard and determined at the same time as the case against Linklaters and Paines.

The Employment Appeal Tribunal has notified the appellant of the date of this hearing and has attempted to have further communication with him yesterday, having regard to the fact that the employers wish to raise a cross-claim saying that even if the tribunal were wrong on the first two points, nonetheless the case should have been struck out on the grounds that it was an abuse of the process, in the sense that the appellant was making scandalous and unnecessary allegations in the course of the litigation and should not be allowed to use the litigation as a platform for making such allegations.

No response was received from the appellant when an attempt was made to contact him. He has not appeared here this morning. So this is a case where an appellant has lodged a Notice of Appeal, asked with us to deal with it urgently, which we have done, but not presented himself at the hearing. It seems to us that the right course for us to take in those circumstances is simply to dismiss this appeal as he has not turned up to advance it. We take this course because we accept that his appeal, in any event, could not, as it stands, have altered the decision of the Employment Tribunal having regard to the second reason they gave for striking it out.

The appeal will be dismissed.