United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICK CHAPMAN (Husband)
For the Respondent	MISS H J HUME (the Respondent in Person)


 


JUDGE D SEROTA QC

1. This is an appeal by the Respondent, Mrs Chapman trading as Premier Care Home Care Services, from a decision of the Employment Tribunal at Ashford, chaired by Mrs Valerie Cooney. This decision was promulgated on 19 June 2001. The Employment Tribunal decided the Applicant had been unfairly dismissed and awarded compensation.
2. The hearing was fixed for 24 May. Mrs Chapman had sought an adjournment. This in fact was the fifth adjournment she had sought and although she sought an adjournment on the basis of an illness in the family, in the exercise of its discretion, the Employment Tribunal declined to grant an adjournment. There is no appeal against that decision.
3. Directions had been given for documentation to be filed. We believe it should have been filed 7 days before the hearing, in accordance with Rule 8 (5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993.
4. Mr Chapman, who appears today on behalf of his wife, has explained to us that he and his wife were unable to comply with the requirement for serving the documentation because they were moving house and they had difficulty in locating the relevant documents.
5. As it was, the bundle did not come before the Employment Tribunal until 24 May, indeed the bundle that we have been given actually bears the date 24 May, and Miss Hume did not receive the bundle until she in fact arrived at the Tribunal.
6. It may well be that a number of the documents were, so as to speak, common to both parties but included in the bundle are witness statements and what have you, which, of course, Miss Hume would have seen. As was pointed out by Mr Lewis, the witness statements were in fact dated 5 May and 3 May respectively and there seems to us to have been no justification whatsoever for the delay in making those witness statements available both to the Tribunal and to Miss Hume; even were it to have been the case that there was difficulty in locating some of the other documentation.
7. As the Chairman had refused an adjournment it is relevant to look at Rule 9 of the Regulations. This provides, by sub-Rule (3):

9 (3) "If a party fails to attend or to 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 a party the Tribunal shall consider his Originating Application or Notice of Appearance, any representations in writing presented by him in pursuance or Rule 8 (5) and any written answer furnished to the Tribunal pursuant to Rule 4 (3)."

8. The documentation that had been supplied was clearly out of time and it may well be that documentation that is supplied so long after the date that it should have been would not in fact be regarded as having been served within the meaning of Rule 8 (5). However, that is not a point that it is necessary for us to determine because we have been told, by Miss Hume, (although this is disputed by Mr Chapman), that the documentation was in fact considered by the Tribunal.
9. The principal ground upon which this Tribunal is brought is on the basis that the Tribunal did not consider that material. It seems to us, however, that a close scrutiny of what in fact was, and was intended to be, a very short judgment, does make it clear that the Employment Tribunal had in mind material contained in the bundle. For example, in paragraph 2, in coming to the conclusion that the Respondent made unreasonable demands and may have been forceful in asserting her response to criticism, the Tribunal is referring to matters that are dealt with in that documentation.
10. Equally, the accusation in paragraph 3, that the Applicant rushed her visits, is a matter that figures prominently in the documentation supplied to the Tribunal. Further, in paragraph 4 the Tribunal refer to the reasons given for the Applicant's dismissal. That again is dealt with in the bundle.
11. In paragraph 5 the Tribunal actually find that the Respondent had shown the reason she dismissed the Applicant was a reason relating to her conduct but, nonetheless, the Tribunal found that the Respondent did not act reasonably in treating that reason as sufficient reason in all the circumstances. This finding is again based on material contained in the bundle.
12. It was perhaps inevitable that the Tribunal would come to a conclusion in favour of Miss Hume, bearing in mind her evidence and that of Mrs Hoare, was the only evidence they heard and they appeared to be credible and honest witnesses and that evidence was likely to weigh far more than anything in the statements of persons who had chosen not to attend.
13. It seems to us, therefore, that the principal ground of this appeal cannot succeed because it seems to us that the Employment Tribunal did in fact have regard to the material, albeit its judgment was brief.
14. Furthermore, it seems to us, that the facts disclosed in this case would make it extremely difficult for a Respondent to justify a dismissal that took place as this particular dismissal did. It was carried out without the Applicant being given any opportunity to state her case, either at dismissal level or at the appeal level.
15. Regardless of whether or not the Tribunal considered the material lodged by the Respondent, Mrs Chapman, it seems to us there was nothing in that material that could conceivably justify the manner in which this particular dismissal was effected. In those circumstances, in our opinion, there is nothing in this appeal that would justify our overturning the decision of the Employment Tribunal.
16. Our attention was drawn by Mr Chapman to the unreported decision of Yeboa v Crofton, a decision of the Court of Appeal, Neutral Citation 2002 EWCA 794, handed down on 31 May 2002. We can see nothing in this decision, which we have looked at, that assists us in our determination.
17. The Employment Tribunal considered, in our opinion, all the evidence that was before it and came to a very clear conclusion on the facts. There is nothing in their decision that we can criticise and no ground for our interference has been shown. In those circumstances the appeal must be dismissed.