United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR MARTIN CONDRON (Representative)


 


JUDGE PETER CLARK:

1. We have before us for preliminary hearing two appeals brought by the employer, MTD Logistics Ltd ['MTD'] as follows:

(1) an appeal - EAT/955/99 - against the substantive decision of a full Employment Tribunal sitting at London (North) under the chairmanship of Mr Carl Teper on 17th May 1999, upholding the applicant, Miss Shurety's complaint of unlawful sex discrimination, awarding her compensation in the sum of £8,712.57 and ordering MTD to pay her costs to be assessed by the County Court if not agreed. That decision was promulgated with extended reasons on 28th June 1999.

(2) an appeal – EAT/1205/99 – against the decision of the Chairman alone to refuse MTD's request for a review of the substantive decision on the grounds that it had no reasonable prospect of success under rule 11(5) of the Employment Tribunal Rules of Procedure. That review decision was promulgated with extended reasons on 17th August 1999.

Background

2. The applicant commenced these proceedings by an Originating Application presented on 12th March 1999, in which he contended that she was employed by MTD as an Administrative Assistant from 2nd November until her summary dismissal on 15th December 1998. She alleged that the reason for her dismissal was that on 15th December she had informed a director of MTD, Mrs King, that she was pregnant. Mrs King then apparently went to speak to the Managing Director, Mr Strong, and returned a few minutes later to inform the applicant that it had been decided to terminate her employment as her "attitude was not right". The Originating Application was drafted by solicitors. It plainly set out the nature of her case of unlawful discrimination.
3. MTD resisted the claim. In their Notice of Appearance, signed by Mrs King and dated 1st April 1999, they said this:

"There is no truth or substance in Miss Shurety's claim. Her trial period was terminated for continuous incompetence and misconduct."

No further particulars were given.

4. On 14th April 1999 the tribunal wrote to MTD requiring particulars of the applicant's alleged incompetence and misconduct within 14 days. MTD did not comply with that order.
5. Notice of the hearing fixed for Monday, 17th May, was sent to the parties on 19th April.
6. On Friday, 14th may the sales director of MTD, Mr Malpass, faxed a letter to the tribunal office saying that their principal witness, Mrs King, had been ill for the best part of a week, had seen her doctor who had referred her to her dentist as she was suffering from ear pain, nausea and giddiness. It was improbable that she would be able to attend on Monday, 17th May. Mr Malpass asked for a short adjournment.
7. Asked for their comments, the applicant's solicitors replied opposing the adjournment application.
8. The matter was put before the duty Chairman who directed that MTD provide medical evidence to show that Mrs King was unable to attend the tribunal to give evidence. Mr Malpass told a tribunal clerk on the telephone that "her doctor would not provide a letter unless requested to do so, because it's against the law."
9. The duty Chairman considered the matter again and directed that an adjournment would only be granted if there was medical evidence of incapacity to attend the hearing. Mr Malpass was informed of that decision at 15:38 on the afternoon of 14th May. At 15:46 he telephoned the tribunal office saying that he was unable to provide a medical certificate.
10. On Monday 17th May the applicant attended before the tribunal with solicitor and Counsel. There was no appearance by or on behalf of the respondent. At the request of the tribunal the clerk contacted Mr Malpass. He said that Mrs King was at the dentist and no-one else would be attending as Mrs King was the key witness.
11. We interpose at this stage that rule 9(3) of the Employment Tribunal Rules of Procedure provides, so far as is material:

"(3) If a party fails to attend or be represented at the time and place 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 … disposing of any application in the absence of a party the tribunal shall consider … [the] 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)."

12. The tribunal decided to hear the case in the absence of MTD, rather than adjourn it, for the following reasons set out at paragraph 3 of their reasons:

"… Firstly, there is no medical certificate (the Tribunal noted that Mrs King had not become ill suddenly on Friday but had been unwell during the proceeding week). Secondly, and more importantly, nobody has attended on behalf of the Respondent, on reading letter 'C' it is clear that Miss Podbury could have given some relevant evidence. Thirdly, the Respondent had written to the Applicant's representative on 12 January 1999, letter 'D' which indicated that in addition to Miss Podbury, Mr Strong could have given some relevant evidence. … Fourthly, the Tribunal has taken into account that fact that the Respondent failed to reply to the Tribunal's letter of the 14 April when they were given 14 days to set out the dates and particulars of the Applicant's alleged incompetence or misconduct. Finally, the Applicant is present and represented, she is 7 months pregnant and the case is 5 months old. It appeared to the Tribunal that the Respondent had scant regard for the Tribunal and that it was in the interests of justice to proceed. The letters referred to as, 'A', 'B', 'C' and 'D' form part of and are annexed to this decision."

13. They then heard evidence from the applicant, which they accepted, considered the documentary evidence and the written representations of MTD and concluded that the applicant had been dismissed because she was pregnant, and that amounted to unlawful sex discrimination. They calculated compensation in the total sum mentioned earlier and found that MTD had behaved unreasonably such that an order for the applicant's costs would be made, to be assessed if not agreed.
14. Having been notified of the tribunal's oral decision by the applicant's solicitors, MTD then instructed Employment Consultants, Peninsula Business Services Limited, to act on their behalf. On 3rd June Peninsula wrote to the tribunal applying for a review of the substantive decision under rule 11(1)(c) and (e).
15. Full grounds for that application were then set out in a letter to the tribunal dated 13th July 1999. With that letter was sent the following medical evidence:

(1) letters from Mrs King's general practitioner, Dr Brown, dated 10th June and 9th July 1999, confirming that Mrs King had attended the surgery on 14th May with acute facial pain; she was prescribed pain killers and advised to see her dentist.

(2) a letter from her dentist, Mr Page, dated 17th May 1999, confirming that he saw Mrs King on that day, that the problem was probably related to an over exposed wisdom tooth and that in due course the tooth would be extracted.

We pause to observe that neither the doctor nor the dentist proffered his opinion that Mrs King was unfit to attend the tribunal on 17th May.

16. In his review decision reasons the Chairman considered the history, the representations made by both parties in writing , and decided that the full tribunal had fairly exercised its discretion to proceed with the substantive hearing. The review application was accordingly dismissed summarily.

The Appeals

17. In support of these appeals, Mr Condron has submitted a detailed skeleton argument which he has further developed in the course of oral submissions. The points which he takes are as follows:

(1) At the substantive hearing the tribunal made no concession for the fact that the company was acting in person. It is a small business and he contends that on occasions representatives of the respondents became befuddled by the procedural requirements of these proceedings.

We shall dispose of that contention shortly. It is has been long established before this Appeal Tribunal and in the Court of Appeal that there is no two-tier approach to representation or lack of it before an Employment Tribunal. A party is fixed with the incompetence of either itself or its representative. We can see no grounds at a full appeal hearing for interfering with this tribunal's approach on the basis that the respondents were unable to properly present their case. On the contrary, on the particular facts of this case, the tribunal concluded that the respondents had "scant regard for the Tribunal" and the Chairman in his review decision referred to the respondents having "clearly dragged their feet". Mr Condron submits that those findings were impermissible to the point of perversity. Having reviewed the history of the matter as we have set it out, far from being perverse, we think that they were perfectly permissible findings.

(2) The tribunal ought not to have proceeded in circumstances where Mrs King was unfit to attend the hearing.

It is right to say that difficulty was experienced by the respondents in obtaining the medical evidence required by the duty Chairman in his direction given on 14th May. However, that material was subsequently obtained and put before the Chairman on the review application. We have earlier summarised the letters from the doctor and the dentist. Not only is there no express opinion by either professional that Mrs King was unable to attend the hearing on 17th May, looking at the nature of the problem, as it is set out in those documents, it is far from clear to us, as indeed it was unclear to the Chairman, that she was unable to attend. In these circumstances, we find no perversity in the tribunal's decision to proceed with the hearing rather than adjourn it on 17th May.

(3) It is said that this was the first time the respondents had applied for a postponement and in these circumstances it ought to have been granted, given the grounds on which the application was made.

It seems to us that that was a matter which the tribunal took into account. They also took into account the lack of action on the part of the respondents in providing particulars of the incompetence and misconduct alleged against the applicant. They also, balancing the interests of both parties, took into account the position of the applicant and in taking into account all those factors, came, in our judgment, to a permissible conclusion, that the matter ought to proceed.

(4) Mr Condron submits that he raises an arguable point of law under rule 9(3). He submits that where the Notice of Appearance is wholly inadequate and fails to address any of the issues raised by the Originating Application other than a flat denial, then to proceed in those circumstances in the absence of the respondents amounts to an error of law.

We confess that we find that submission startling. Rule 9(3) is clear. Before disposing of an application in the absence of a respondent, the tribunal shall consider the Notice of Appearance. It is plain that the tribunal did so, they record that fact at paragraph 12 of their extended reasons. That is the sole requirement under the rule. The idea that a respondent who puts in an inadequate Notice of Appearance should be more favourably treated than one, who puts in an adequate Notice of Appearance, is to our minds absurd. We therefore reject that argument.

(5) Mr Condron takes a point on the costs order made by the tribunal in the substantive decision.

The relevant finding by the tribunal is set out at the end of their reasons in this way:

"14. … The Applicant has been represented by solicitors and Counsel, these costs are £4,250.00 plus VAT which totals £4,993.75. The Tribunal having considered the Respondent's behaviour as being unreasonable (as set out in paragraph 2 and 3 of this decision) ordered these costs to be paid. The Tribunal does not have power to attach conditions to a costs order and they will have to be assessed by the County Court if not agreed."

Mr Condron submits that such an order was made without jurisdiction and he has referred us to rule 12 of the Employment Tribunal Rules of Procedure. Rule 12(3) permits a tribunal to order a party to pay a specified sum in costs not exceeding £500; alternatively, and in the absence of agreement between the parties, the rule provides that the defaulting party who has acted unreasonably must pay his opponent the whole or a specified part of the costs incurred by his opponent as taxed if not otherwise agreed.

We think the submission made is that the tribunal has ordered the respondents to pay the amount of costs claimed by and on behalf of the applicant in the sum of £4,250 plus VAT. That is not how we read the tribunal's order. It seems to us that they have ordered the respondents to pay the applicant's costs to be assessed by the County Court, the new expression for taxation since the coming into force of the Civil Procedure Rules, in the absence of agreement between the parties. For the avoidance of doubt, we make it clear that if the respondents do not accept that figure put forward on behalf of the applicant, then the correct amount will have to be assessed by the County Court. It follows that, on our reading of the tribunal's order, the fifth point taken by Mr Condron also fails.

(6) So far as the appeal against the review decision is concerned, Mr Condron repeats the earlier points which he made in relation to the substantive hearing, we shall not set them out again in this judgment having considered them and rejected them in relation to the substantive decision, we similarly so find in relation to the review appeal. In addition, he takes the point that it was unreasonable of the Chairman, reading the medical evidence submitted, to conclude other than that Mrs King was sick and unable to attend the hearing on 17th May.

It seems to us, for the reasons earlier given, that the absence of an express opinion by either the general practitioner or the dentist to the effect that Mrs King was unable to attend the hearing on 17th May is fatal to that submission. Indeed, looking at what was said by those two professionals, it seems very far from clear to us that she was unfit to attend. Certainly, there is no reason put forward as to why the company was unrepresented on 17th May.

18. The further point taken by Mr Condron, specifically in relation to the review appeal, is that the Chairman was wrong to characterise the respondents' conduct of the proceedings as "dragging its feet". This is to place an unreasonable burden on a litigant in person.
19. Again, we reject that submission for the reasons earlier given. Our overall view is that the tribunal in this case and the Chairman on the review application gave every latitude to the respondents but the respondents chose not to take a proper part in these proceedings with the consequence that it has lost its case. That may be a lesson for the future, but for present purposes we find that there are no arguable grounds to go forward to a full appeal hearing and consequently, both these appeals are dismissed.