United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR T DELAMARE (of Counsel) Instructed By: Ms J Scoular Messrs Mills & Reeve Solicitors Francis House 3-7 Redwell Street Norwich NR2 4TJ


 


JUDGE CLARK: The question for me at this directions hearing is whether this case should be listed for a review hearing under rule 33 of the Employment Appeal Tribunal Rules and in particular rule 33(1)(c) that the interests of justice require such a review.

1. The background is as follows. Mr Vadehra was employed by UK Project Support Ltd (UK), an employment agency from October 1995 until 17 February 1997. His services were supplied under contract by UK to Linklaters and Paines, Solicitors (Linklaters). He contended in an Originating Application presented on 16 May 1997 and issued against UK that he was dismissed on 17 February 1997 without warning and claimed against UK unfair dismissal, direct racial discrimination and victimisation.
2. The unfair dismissal element of the claim was dismissed at an earlier stage and I am not now concerned with it. In addition he has commenced separate Employment Tribunal proceedings against Linklaters for racial discrimination. That action is still on foot and the matter is due to be heard on 27 September 1999.
3. This case came before a Chairman, Mr G Flint, sitting at London North on 18 March 1999 for directions. On that occasion the Chairman dealt with three issues.

(1) Whether the Appellant's racial discrimination claim ought to be struck out under rule 4(7) of the Employment Tribunal Rules of Procedure for failure to provide particulars of his claim, previously ordered by the Tribunal.

(2) Whether UK was responsible in law for allegedly racially discriminatory acts of Linklaters under the Race Relations Act 1976.

(3) Whether the action should be struck out on the grounds that it is frivolous and vexatious under rule 13(2)(d).

4. For the reasons given in a decision promulgated on 9 April 1999, the Chairman ruled:

(1) that the claim against UK should be struck out under rule 4(7)

(2) that UK was not responsible for the alleged discriminatory actions of Linklaters under the 1976 Act

(3) that he would not strike out the action on the further ground that it was frivolous and vexatious.

5. Against that decision the Appellant appealed by a notice dated 10 May 1999. At the foot of his grounds of appeal he asked that the appeal be listed as a matter of urgency in view of the imminent listing by the Employment Tribunal of his separate claim against Linklaters. At paragraph 1 of the Notice he gave his address as 177 Westcombe Hill, Blackheath, London SE3 7DP and a telephone number for that address.
6. In compliance with the Appellant's request for urgency, the appeal was listed for an inter-partes hearing on 13 May before a division presided over by Morison P. Notice of that hearing was duly sent to the Blackheath address. On 13 May the Appellant did not attend and was not represented. UK appeared by Counsel, Mr Delamare.
7. In a judgment delivered by the President on that day the Employment Appeal Tribunal dismissed the appeal. I see from that judgment the President recorded that attempts were made to contact the Appellant without success at the address given in the Notice of Appeal. The Employment Appeal Tribunal then proceeded to consider the appeal in his absence.
8. The basis upon which the appeal was dismissed appears to be that the Employment Appeal Tribunal accepted a submission made by Mr Delamare that the Notice of Appeal was limited to challenging the Chairman's first finding, that is, that the application should be struck out under rule 4(7). There was no argument advanced in the Notice of Appeal in relation to the Chairman's second finding, that is that UK had no responsibility under the 1976 Act for the actions of Linklaters. Mr Vadehra accepts before me today that his Notice of Appeal does not advance any argument on the second issue determined by the Chairman.
9. By their Answer dated 12 May 1999 UK indicated their intention to cross-appeal against the Chairman's third finding, that is, his refusal to strike out the claim on the further ground provided for in rule 13 (2)(d). Having been served with the Employment Appeal Tribunal order dismissing his appeal Mr Vadehra applied effectively for leave to appeal to the Court of Appeal and for the case to be relisted before the Employment Appeal Tribunal under the review procedure. His application for leave to appeal was dismissed by an order dated 9 June 1999 and we understand that he has renewed that application to the Court of Appeal and been given an indication that he should first return to this Court in order to pursue his application for a review hearing.
10. As to the application for a review hearing, now before me for directions, the Appellant has lodged an affidavit sworn on 25 May 1999, in which he explains that during the week of 13 May he was living at his weekday address in Cheltenham where he is currently working; that his parents who live at the Blackheath address were on holiday during that week and that he did not learn of the Notice of Hearing in relation to 13 May hearing until his return the following weekend. He then promptly telephoned this Tribunal on 17 May, a Monday, and put in train this application for a review.
11. Mr Delamare submits that the Employment Appeal Tribunal powers of review under rule 33(1) differ from those of an Employment Tribunal under rule 11(1) of the Employment Tribunal Rules of Procedure for a reason. For example rule 11(1)(c) of the Employment Tribunal Rules provides a ground for review where a decision is made in the absence of a party. No similar ground appears in rule 33(1) of the Employment Appeal Tribunal Rules. He submits that the reason is that whereas Employment Tribunals are essentially concerned with a fact finding exercise which involves hearing witnesses, the Employment Appeal Tribunal's jurisdiction is limited to determining questions of law only and in those circumstances it ought to be possible for a division of this Appeal Tribunal to determine an appeal in the absence of a party on the basis of his written submissions contained in the Notice of Appeal or Answer.
12. I am not entirely convinced by that argument and as a matter of practice this Tribunal will in an appropriate case grant a review hearing where a party is absent and a decision reached in his absence, in circumstances where he puts forward a good and genuine reason for his absence, and where there is merit in the appeal.
13. It therefore seems to me that the proper approach for me to take in determining whether or not to list this case for a review hearing is to ask myself first whether the Appellant has shown a good and genuine reason for his absence on 13 May and secondly, whether at a review hearing there is any real prospect of the review succeeding on its merits.
14. Did he have a good and genuine reason for absence on 13 May? I accept that the reason put forward, namely that he was at his Cheltenham address when Notice of Hearing was served and enquiries made by the Employment Appeal Tribunal at his Blackheath address, and that he was unaware of the hearing date, is a genuine reason for absence. Was it a good reason? Here it seems to me that the Appellant fails. He asked for an urgent hearing. It was his responsibility to ensure that he maintained contact with the Employment Appeal Tribunal to ensure that he could be made aware of the hearing date. He failed to do so. He might have included on his Notice of Appeal his Cheltenham telephone number but did not do so. On this ground, I decline to order a review hearing. It is therefore strictly unnecessary for me to proceed to deal with the merits of his review application, which in any event seem to me to be covered by the appeal route to the Court of Appeal, should leave be granted by that Court.
15. I have been referred to the judgment of Mr Justice Wood in Blockleys Plc v Miller [1992] ICR 749 by Mr Delamare for the proposition that the Employment Appeal Tribunals powers of review should be exercised restrictively, and in particular, should not be used as a vehicle for rearguing or rehearing questions of law.
16. In reaching my conclusion on this application I am aware that the result may seem harsh so far as the Appellant is concerned. However, I have to balance the interests of both parties. I take into account that he has an effective discrimination claim against Linklaters, with whom he worked during the course of his employment with UK. I also have to bear in mind that the Respondent has been put to the expense of two hearings before this Appeal Tribunal. It is no fault of theirs that they attended on 13 May and the Appellant did not. In these circumstances, the application fails.