United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION ON BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE NELSON

1. This is an appeal by Mr Benchiba against the decision of the Employment Tribunal at Bristol in their decision of 15 November 2000 when they unanimously decided that the title of the Respondents was to be amended, the Applicant's application for an adjournment was refused and the Applicant's originating application was dismissed.
2. The grounds of this appeal are that the Tribunal wrongly failed to take into account the fact that the reason for his failure to attend at the hearing before the Employment Tribunal was his ill health, that he had faxed them and contacted them to let them know that he was unwell and indeed had later obtained a medical certificate to that effect and they should have taken that into account in granting an adjournment.
3. The originating application by the Appellant was upon the basis, as described in the IT1 of constant racial abuse and incompetence of associate services. The case was originally listed for hearing on 14 August 2000 and the first application for an adjournment was made by the Respondents on the grounds of the unavailability of a key witness.
4. On 31 July the hearing was therefore postponed and a fresh date of 4 September 2000 notified. On that occasion the Applicant had not agreed the bundle nor provided any witness statements for that hearing and on the morning of the hearing he did not attend but telephoned the Tribunal to say that he did not feel well. He gave details some days later to the Tribunal by a fax in which he stated that he had been off work for 3 weeks with a trapped nerve in his neck and that he was taking strong painkillers and anti-inflammatory drugs, which caused him drowsiness. He could only apologise for this situation.
5. On the basis of that fax the Tribunal postponed the case to a date to be fixed, and said that it wished to see a medical certificate. The matter was set for a hearing date on 24 October. On 5 October the Applicant applied for postponement of that hearing to enable him to issue a questionnaire. The application was refused but on 12 October the Respondents again applied for a postponement this time because of a holiday absence of the key witness.
6. That was granted and the case was then listed for the day when it should have been heard by the Tribunal, 7 November 2000. Again the Applicant failed to comply with the Directions Order as to the agreement of the bundle of witness statements and gave no indication that he might be unfit to attend.
7. However, on the morning of the hearing of 7 November another fax was received by the Tribunal asking for a further postponement. The reasons he gave again were ill health with a trapped nerve and neck pain, with his condition having worsened considerably at work yesterday and he ended by saying:

"Coincidentally, on this particular morning I am in severe pain and grimacing as I write this fax".

8. The Tribunal concluded that if all that was correct, the Applicant was unfit to attend and it would not be right to proceed in his absence but they saw a pattern of unwillingness by him to prepare for, and attend hearings and they said they were not satisfied, on what they had heard from the Applicant that he had given an adequate explanation for his non attendance.
9. They therefore refused to adjourn the matter, went on to consider under Rule 9(3) whether to dismiss or adjourn the case and decided that in the circumstances, as his allegations were lacking in precision, it would be quite inappropriate to allow the matter to continue and so they therefore dismissed the originating application.
10. The appeal against that decision or those decisions came before this Employment Appeal Tribunal first on Monday 11 June 2001 and on that date the matter was adjourned because the Appellant did not turn up to present his case as his car had broken down. That information was given by telephone by a friend or a relative to this Tribunal during the course of the morning. The matter was adjourned therefore in order to enable the Appellant to come before the Court to present the full circumstances and the grounds of his appeal. It was adjourned to this date.
11. Today, again the Appellant has not presented himself at this Court and he is still not here although 2 other matters have now been dealt with and it is after 12 pm. In the circumstances we are quite satisfied that it would be inappropriate to allow this appeal. We are satisfied that on the face of the decision, the decision which the Employment Tribunal came to was perfectly correct and having heard nothing expressed to the contrary to persuade us to the contrary by the presence of the Appellant to further his case we are left with no other alternative but to dismiss this appeal which is what we do.
12. I am reminded that attempts had been made to contact the Appellant at his home today but no contact was made. He had not attended nor given any reason why he should not be able to attend. The appeal should be dismissed.