United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C GLYN (of Counsel) ELAAS


 


JUDGE HICKS QC:

1. The appellant, Mr Ghuman, was employed by the respondent, Ford Motor Company Limited, and dismissed. It appears, although the circumstances are not a matter for us, that the employer sought to justify that dismissal as being for gross misconduct following a violent episode in the workplace on 2nd February 1998.
2. Mr Ghuman complained of unfair dismissal. The employer by its Notice of Appearance on 29th May 1998 admitted the dismissal and stated, as I have indicated, that it was for gross misconduct.
3. The application was initially listed for hearing on 22nd July 1998 and notice to that effect was sent to the parties on 11th June 1998. On 25th June 1998 Mr Ghuman requested a postponement on the basis that one day was not enough and three days should be allowed.
4. In response that application the tribunal must have vacated the hearing date on 22nd July 1998, and certainly on 28th August 1998 a fresh Notice of Hearing was sent giving the hearing dates as 18th, 19th and 20th January 1999.
5. On 14th January 1999, four days before the beginning of that hearing, the tribunal was informed that those dates were not convenient to Mr Ghuman because he had go to India on short notice as a result of the serious illness of his mother. His solicitors requested that the hearing should be relisted in or after April 1999. The fact that they did so is not only found in the tribunal's reasons, but also repeated in the Notice of Appeal. Whether that was in the same letter or other form of application for the postponement or subsequently does not appear and is not of any relevance.
6. The case was then relisted for hearing on 6th April 1999. That was done by Notice sent on 29th January 1999 to the parties, and in the case of Mr Ghuman it was sent to the address given on his Originating Application, which was that of his solicitors, who must therefore have been acting for him throughout.
7. There was no further communication to the tribunal until 6th April 1999, when the case was called on. The employers attended in the person of a Mr Clayton with a solicitor and three witnesses. Mr Ghuman was not there, nor were his solicitors, and, as I have said, there had been no explanation or communication from Mr Ghuman or his solicitors and no application for a further postponement.
8. In those circumstances, Mr Clayton requested that the tribunal consider its powers under Rule 9(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993. That Rule provides as follows:

"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 or 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)."

9. The tribunal in response to that application give their decision and reasons in two short paragraphs:

"7 The Tribunal does not have before it any representations in writing nor any written answers. The Tribunal has therefore decided to grant the Respondent's application and has considered the Originating Application and has also read the Notice of Appearance in this case.

8. Accordingly the Tribunal is of the view that as the Applicant is not present to substantiate the matters disclosed within the body of his Originating Application this is a case which is appropriate for dismissal in his absence."

10. In presenting the appeal on this preliminary hearing Mr Glyn has very helpfully summarised the basis on which, as he submits, the appeal should go forward to a full hearing, and although he initially said that it came under two heads it seems to us, after he had developed his submissions, that there are rather more than that, and we shall take them in order.
11. The first submission is that the Employment Tribunal did not address its mind to the fact that it had a discretion and did not therefore exercise the discretion. In our view there is nothing in that point. The tribunal sets out in full the terms of the Rule 9(3). It is quite plain on the face of that Rule that there were three possibilities in this case: dismissal, disposal or adjournment. It cannot be supposed that the tribunal did not understand that the choice between those was a discretionary one. Nor cannot it possibly be supposed that having set out the procedural history, very much as I have already summarised it, the tribunal did not have that history in mind when reaching its decision. We do not consider that there is an arguable point in that form.
12. Mr Glyn's second point was that if the tribunal did consider the exercise of its discretion it failed to take into account a relevant fact, namely the circumstances of the January adjournment; or, if it did so, it was perverse in refusing a further adjournment. But, for the reasons I have already given, it is quite plain that the tribunal did consider the circumstances of the January adjournment, and in particular the fact, which Mr Glyn emphasises, that it was an adjournment because of the need for Mr Ghuman to visit his seriously ill mother in India. Those circumstances, however, also included the very relevant fact that through his solicitors he had requested a relisting in or after April 1999 and that by the end of January 1999 he, through his solicitors, knew that that date was 6th April 1999. In those circumstances it seems to us impossible to argue that the tribunal failed to consider those relevant facts or that in the light of them their decision to exercise their power to dismiss, or to put it the other way round their refusal to grant an adjournment, was perverse. There has been some canvassing of how far any failure to deal with the matter was the fault on the one hand of Mr Ghuman personally or of his solicitors, but that is not a matter which either the tribunal or we can or should investigate. There were solicitors acting for him on the record throughout, and they had the knowledge which I have mentioned. It appears from what we have been told and from what is alleged in the Notice of Appeal that Mr Ghuman did not eventually return from India until the week of 17th May 1999. But the fact is that his continued absence in India on 6th April, any reason for that and any prospective date of return were simply not communicated to the tribunal.
13. Mr Glyn then submits that the only fact which the tribunal on the face of its reasons takes into account in deciding to grant the respondent's application is that in the first sentence of paragraph 7 it says that it "does not have before it any representations in writing nor any written answers." The tribunal then goes on to say that it "therefore" decided to grant the respondent's application" Mr Glyn submits and in our view rightly, that the reference to representations in writing or written answers must be to the closing words of Rule 9(3) and is therefore concerned with what material the tribunal must consider before dismissing or disposing of an application. It is not of itself capable of being and cannot be relied upon by the tribunal as being part of the circumstances affecting the exercise of its discretion to adjourn. We agree about that, but for the reasons I have already given it is plain that the tribunal must have taken into account, because it has only two or three paragraphs earlier mentioned, the very material matters of the circumstances of the January postponement and of the refixing of the hearing for 6th April.
14. Next Mr Glyn says that there is no indication in the reasons that the normal practice was followed of making telephone enquiry of the applicant or, as plainly in this case it would have been, his solicitors before reaching the decision which the tribunal reached. Although that no doubt is the normal practice it cannot be the case that as a matter of law the tribunal must follow that practice in every case. What matters is whether (if, as we consider, it exercised its discretion) it made any error of law in doing so.
15. Mr Glyn next says that in the light of the circumstances of the January adjournment the tribunal should have granted an adjournment on 6th April. We have already dealt with the question whether they did take into account those circumstances. We have already dealt with the question whether they were perverse in the conclusion which they reached in the light of the circumstances, and to say simply that they should have granted the adjournment is to move from errors of law to an invitation to us to say that we would have exercised the discretion differently, which is not within our jurisdiction.
16. Mr Glyn next says that Rule 9(3) requires consideration of the documents referred to. But the tribunal did consider the documents referred to. They considered the Originating Application and the Notice of Appearance and there were no documents in the other categories referred to in the Rule, namely representations in writing or written answers.
17. Finally, Mr Glyn says that paragraph 8 of the tribunal's reasons reverses the onus of proof in the words "the Applicant is not present to substantiate the matters disclosed within the body of his Originating Application …". It is perfectly true that since dismissal was not in dispute there would, had both parties attended for the hearing, no doubt would have followed the usual practice that the respondent employer would have opened the hearing on the basis that the dismissal being admitted the next issue, namely the establishment of the reason for the dismissal, was for the employer to prove. But we find it clear from the words used by the tribunal that it was not dealing with this matter under the second of the possibilities open to it, namely to dispose of the application in the absence of the applicant. Had they proceeded under that limb of Rule 9(3) then it would indeed, as we understand it, have been necessary for the respondent to deal with the reason for dismissal and its fairness, although in the absence of the applicant the evidence on those points might no doubt have been very brief. But dismissal is plainly, in our understanding, provided for by Rule 9(3) as a separate mode of dealing with the matter open to the tribunal and it is dismissal the Employment Tribunal says that it is exercising and in those circumstances no question of onus arises and any infelicity in the use of words which might suggest onus is really surplusage if the applicant is not present. Whether one adds the words "to substantiate the matters disclosed" or not is not really of any significance. If the applicant is not present there is a power to dismiss and that was the power which the tribunal was exercising.
18. For those reasons we do not find that there is an arguable ground of appeal and it must therefore be dismissed.