United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON.


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I have before me an application made ex parte by Mrs W Onafowokan in the matter of Mrs W Onafowokan v BP Express Shopping Ltd. On 19 November there was a preliminary hearing at the Employment Appeal Tribunal of Mrs Onafowokan's appeal. She did not attend that hearing; the Employment Appeal Tribunal had been informed that she was unwell. His Honour Judge Wilkie QC and the two very experienced members sitting with him took the view, if I might so put it, that there was nothing at all in her appeal, in other words they took the view that it was far more likely than not to fail but they said this:

7. "We are, however, acutely aware of the fact that Mrs Onafowokan is not present, that she has given a reason for her non-attendance. Therefore whilst we dismiss this appeal, we give her liberty to appeal to set aside our decision, provided she applies to do so within seven days after this decision is sent out to her and provided she supplies documentation in the form of a doctor's certificate, relating to her non-attendance on the grounds of illness today…."

that date being 19 November. Well, the position is that on 25 November, in other words within the 7 days, she did apply to the Employment Appeals Tribunal to have the matter set aside and she enclosed a medical certificate which appears to cover the date, the 19 November, although I am bound to say, looking only at a photocopy, it is very difficult to read what the ailment of which she was suffering is intended to be described as.

2. On the face of things, she appears to have fulfilled the very conditions set out in the judgment of his Honour Judge Wilkie and the two lay members on 19 November in order that the matter could be set aside. The object of giving her liberty to apply to set it aside was so that she could be heard to argue the case if she wished to. For me to exercise the discretion that I have not to set it aside would be to negate the very purpose which lay behind the conferring of the ability in the first place. Accordingly, I set aside the judgment of 19 November but I emphasise that in so doing I am paying no regard at all to the merits of the case. It must not be thought that I am differing from the view, so plainly expressed on 19 November, that this was a hopeless or close to hopeless case. I would not wish Mrs Onafowokan to think that in my setting aside the judgment of 19 November I was doing so on the basis that I could see some prospect of success for her. I do not wish to create false hopes and so, without looking at the merits of the appeal at all but having regard to the conditions set by his Honour Judge Wilkie on the 19th, as conditions to be satisfied, before there should be an application to set aside and seeing those conditions to be met, I set aside the judgment of 19 November and leave the matter so that a fresh preliminary hearing is to be arranged. That preliminary hearing will be simply a hearing at which Mrs Onafowokan or her representative can be heard; and the matter can go forward to a Preliminary Hearing in the ordinary way.