United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J WAITHE (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER LANGSTAFF QC

1. This is an appeal from the decision of the Employment Tribunal sitting at London Central. Extended Reasons for its decision dismissing the Appellant's complaints that she had been discriminated against on the ground of race were promulgated on 1 August 2000.
2. She had not attended the hearing which led to that decision. An application for a review was made on 3 August 2000. A decision to refuse a review was given with Extended Reasons for that refusal on 2 March 2001. The claim was dismissed because in her absence there was no evidence upon which the Tribunal could find a successful claim of sex discrimination.
3. We are extraordinarily grateful to Mr Waithe who has advanced the sole ground that there is in this appeal before us today. He submits that an Employment Tribunal is under an obligation to act fairly, that there was here no proper equality of arms because the Appellant had the case heard in her absence, and he submits that the Tribunal should have exercised its discretion to adjourn the hearing. He has referred us to Jacobs v Nonsalta Ltd [1977] ICR 89, Carter v Credit Change Ltd [1979] IRLR 361 and the case of Green & Others v Wittington (Unreported) EAT/351/91. Those cases emphasise that it is for the Tribunal to act in the interests of justice and that they must not act arbitrarily nor capriciously, but subject to that an Employment Tribunal has a complete discretion, so long as it exercises it judicially, to postpone or adjourn any case provided there is a good reasonable ground for doing so. He submits in addition that the European Convention on Human Rights mean that the failure to adjourn was a breach of what is Article 6. It deprived the Appellant of the opportunity of having her case heard on its merits.
4. The facts as found by the Employment Tribunal in essence were these. The originating application was dated 4 April 2000. There was an appearance by the Respondent on 27 April 2000. The Appellant's mother had been in hospital from which she was discharged on 23 June 2000. Notice of the hearing before the Employment Tribunal was sent on 27 June . On 19 July the Appellant asked the Employment Tribunal for advice because of the commitment she had caring for her mother. The Employment Tribunal replied on 21 July. She made phone calls on 25 and 26 July. She had not thus far asked for any postponement of the hearing. That application was first made on 26 July at 4 o'clock in the afternoon.
5. That application was rejected and the hearing went ahead the next day, 27 July, in her absence. On review the Employment Tribunal Chairman set out the rival cases for the Appellant and for the Respondent, and reached conclusions in these terms:

"It seems to us that Miss Sidibeh had her chance to attend on 27 July 2000, that she could have done so, and that she could have presented her case. She chose not to although she knew her postponement request had been refused. We do not accept that her reasons were valid. It is also clearly open to her to apply for a postponement in good time and/or to attend the Tribunal on 27 July, explain her difficulties with representation and re-new her request for a postponement. Had that been done, the Tribunal could have examined the background and would have been able to decide whether a fair trial of the issues required a postponement for Miss Sidibeh to obtain representation. We consider that it would not be right or just in the circumstances here to reopen the case so that the merits may be heard at some time convenient to Miss Sidibeh, with or without a representative, when the Respondent has already attended with witnesses and against the background outlined. We refuse this application for a review."

6. So far as we are concerned we have to ask whether the Tribunal exercised its discretion to adjourn a hearing or its discretion to refuse a review upon any wrong basis of law. It is the essence of a discretion that it may only be appealed to this Tribunal if the Tribunal having the discretion has misdirected itself or has come to a conclusion which no reasonable Tribunal could come to.
7. We have examined the circumstances revealed by the decisions. We have seen in the Reasons for refusing the review no wrong principle of law. We are unable to see that it would be possible to argue that the Employment Tribunal could not decline the request for a postponement made when it was made in the chronology which we have outlined.
8. It follows that we do not see here despite Mr Waithe's short and eloquent address to us that there is any arguable point of law which merits this case going any further. It must therefore be dismissed.