United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr A Olufeko Solicitor Messrs Liberty Solicitors 85 Kingsland Road Shoreditch London E2 8AG


 


MR COMMISIONER HOWELL QC In this case which comes before today for a Preliminary Hearing Mrs Sola Oso, who appears before us by Mr Olufeko the solicitor who represented her at the Tribunal stage as well as in this appeal, seeks to set aside as erroneous in law the decision of an Employment Tribunal given in extended reasons at pages 3-5 issued on 2 February 1999, dismissing her originating application lodged on 21 October 1998 in which she had complained of unfair dismissal, wrongful dismissal and breach of contract against her employers, the Manley Court Nursing Home.

1. The originating application at pages 6-7 of the appeal file claimed that Mrs Oso was dismissed from her job because she had complained about an unsafe working environment and dangerous working patterns in that nursing home, at which she was a care assistant. It is important to note that on the first page of the originating application on page 6, the name and address of Mr Olufeko, who is a practising solicitor was clearly entered as being the representative acting for the applicant on her application. Accordingly Mr Olufeko was sent correspondence about the arrangements which the Tribunal made for the hearing of the application and he was also involved with correspondence on, for example, the questions of whether there should be an adjournment of the hearing and we have copies of that correspondence in the file. He told us this morning that despite acting as the applicant's representative advising her and being concerned with the arrangements for the tribunal hearing of her application, he was not in fact instructed by her to appear on her behalf at the hearing itself. Nevertheless, there is nothing to indicate that that was communicated to the Tribunal at any stage.
2. When the matter came before the Tribunal the Applicant failed to appear at all and nobody appeared on her behalf. After an adjournment during which tribunal officials tried to find out if there had been some mishap preventing the Applicant or her representative from appearing, the Tribunal decided to proceed with the hearing of the application. The Respondents had all attended with their witnesses, and an issue had been clearly raised by the Respondents in their answer as to whether there had in fact been a dismissal of the applicant at all in this case. They maintained strongly that she was still an employee of theirs and had not been dismissed at all; and were anxious that she should attend at her place of employment to discuss the various matters that had arisen before any further action was taken. Having considered the application, the Tribunal dismissed it. The reasons set out at pages 3-5 of the appeal file include the following paragraphs explaining the course the Tribunal took: -

(4) "It would be apparent on the face of the originating application, that if the Applicant had not been dismissed, then in the absence of resignation before the Tribunal was a possible breach of section 44 of the Employment Rights Act 1996 which protects employees from suffering detriment in employment in certain circumstances. Accordingly, there was a real issue for the Tribunal to consider. However the Applicant did not attend the hearing. The Respondents attended with their witnesses and were represented by Mr Delafield."

(5) The Tribunal was satisfied that the notice of hearing was properly served. There was no message from the Applicant, either by letter, fax or telephone call explaining her non-attendance. There was no application for a postponement. The Respondents had come fully prepared to deal with the merits of the claim."

The Tribunal then referred to rule 9(3) of the Employment Tribunal's Rules of Procedure [1993] governing what should be done in such a situation. The material parts of it were quoted by the Tribunal in the following terms: -

"If a party fails to attend or 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 the party, the Tribunal shall consider his originating application or notice of appearance and 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)."

Paragraph 7 of the Tribunal's reasons recorded that the Tribunal considered the originating application and notice of appearance and decided in all the circumstances that the correct order to make was to dismiss the originating application. The final paragraph of the Tribunal's statement of reasons recorded that the respondents again made clear at the hearing that they were adamant that the applicant had not in fact been dismissed; and the Tribunal expressed the hope that it would be possible for matters to be resolved by discussion between the parties as had already been suggested by the employers.

3. Against that decision Mrs Oso seeks to pursue her appeal on the grounds set out in her notice of appeal pages 1-2 and developed on her behalf by Mr Olufeko before us at the hearing this morning. In brief it is contended that the decision of the Employment Tribunal to dismiss the originating application, in the circumstances they did, was a misdirection of law as no reasonable Tribunal would have done so considering the seriousness of the applicant's concerns about safety, which were what she had been referring to in her originating application. Further it was contended that the Employment Tribunal had misdirected itself and misapplied the provisions of rule 9(3) of the Employment Tribunal rules of procedure as to how to deal with a hearing in the absence of a principal party.
4. Mr Olufeko developed those grounds by submitting that it was an error of law for the Tribunal not to have gone further into the allegations made in the originating application and to consider the evidence in the case, in particular in view of the seriousness of the concerns the applicant wished to raise. Further it was an error of law for them not to have adjourned the proceedings, in order for such matters to be gone into and for a further opportunity to be given to the applicant and her representative to attend, notwithstanding their failure to do so and their failure to give any explanation to the Tribunal as to why they had not.
5. Following the lodging of the Notice of Appeal, and an earlier order made by this Tribunal on 19 July 1999 when the appeal was first considered, a letter and comments have been obtained from the Employment Tribunal Chairman explaining what actually happened on the morning of the date fixed for the hearing of the application. That letter and enclosures dated 18 November 1999 are at pages 31and following of the appeal file before us. As explained by the chairman, the Tribunal had convened at 10:00am on the date duly fixed and notified for the hearing of the application and there was no sign of the Applicant. His notes indicated that 10.15am, the Respondents' representative was informed that the Applicant was not present and the hearing was adjourned to 11:00am to give her time to attend or send a message. The Clerk was then instructed to make enquiries, and at 11:15am when there was still no sign of any appearance by or on behalf of the Applicant, the Tribunal was informed that there had been no message from the Applicant and then proceeded to consider what to do with the application in terms of 9(3) of the rules of procedure. As already explained, they decided to go ahead and dismissed the application for the reason set out in the Statement of Extended Reasons.
6. The Chairman's letter further indicates that on the following day, 15 January, there had been a telephone call from Mr Olufeko, the Applicant's solicitor, who explained that her non-attendance had been due to her being ill the day before, and he promised to fax a medical certificate confirming this. On the basis of that, as the Chairman comments, it would not be in the least unusual for the Tribunal to agree to review its decision to dismiss the appeal and to consider the question of whether the hearing should be reconvened, on the basis of medical evidence making good what had been stated over the telephone on the Applicant's behalf. However, despite Mr Olufeko's promise as recorded by the Chairman to send the medical certificate, that was never done; and accordingly no further steps were taken towards convening a review hearing.
7. We have also in the Appeal file a letter from Mr Olufeko on 20 January in which he asked simply for a copy of the extended reasons for the decision, without making any further reference to the question of applying to set the decision aside; and without making any reference to the continued failure to provide the medical evidence promised. Finally, we have in the file a transcript of a telephone message which has been provided to this Tribunal by the Respondents, recording that on the afternoon of the date of the Tribunal hearing there had been a telephone message to their representatives' office from Mr Olufeko, purporting to inform them that Mrs Oso had called him on that day and said that she was ill and would not able to make it to the Tribunal hearing "tomorrow". That may be as the representative suggests evidence of a misunderstanding on the part of Mr Olufeko or his client as to the date of the hearing; but Mr Olufeko was unable to provide any explanation of that to us today, and as it was not information that was given to the Tribunal in deciding whether or not to proceed with the hearing after giving a suitable opportunity for the Applicant to be contacted, we say no more about it.
8. The terms of regulation 9(3) place an obligation on the Tribunal to determine what is the just course to take in circumstances such as faced this Tribunal, after the matter had been deferred for some time on the morning of the date fixed for the hearing. It is apparent and not in dispute that the arrangements for this particular hearing had been properly notified by the Tribunal. The Applicant had a solicitor on the record and he had been involved in correspondence with the Tribunal itself. We are not satisfied that any arguable ground has been shown in this case for saying that the Tribunal were wrong in proceeding with the hearing, in the circumstances that they now had the Respondent's witnesses in front of them and the Applicant's failure to attend had not been notified to the Tribunal before the hearing in any way. The reasons put forward afterwards for the Applicant's non-attendance we find frankly unsatisfactory, and the failure to provide medical evidence unexplained. We are not satisfied that what has been put before us adds up to any arguable case for concluding that the Tribunal erred in law in determining to go ahead and deal with the application as it stood before them.
9. In particular we note that there was a primary issue of fact on the face of the proceedings as to whether there in fact been any dismissal of the Applicant at all. In circumstances where the Applicant fails without explanation to attend before the Tribunal and provide evidence to make good that precondition for the Tribunal to be able to considerer complaint, we do not consider that there is any error of law in going ahead, having considered the terms of the application and the notice of appearance themselves. The Tribunal's extended reasons specifically record that they did so, and we accept that as being an accurate and sufficient explanation for what the Tribunal did.
10. Consequently we are not satisfied that there are any grounds to warrant our directing this appeal to go further forward for a full hearing of the Employment Appeal Tribunal and we therefore unanimously dismiss the appeal.