United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


MR JUSTICE WALL

1. This is Mr Williams' appeal against the decision of the Employment Tribunal sitting at London (South) on 13 August 2001. As the appeal is not resisted, the Registrar has directed that neither party need attend today and that the matter can be dealt with on the papers. We have of course discussed it. Mr Williams issued a form IT1 on 30 March 2001 claiming unfair dismissal and unauthorised deduction of wages. That application was resisted by his employer, Allport Limited. The application came before the Tribunal on 13 August 2001. A day had been set aside for the hearing. Unfortunately, Mr Williams, who was representing himself, was late. There had been an accident on his route, and he was stuck in traffic. He then had difficulty in parking his car when he did arrive. The upshot was that he was 40 – 50 minutes late.
2. Realising that he was going to be late, Mr Williams telephoned his wife and asked her to ring the Tribunal to say that he was on his way. According to his grounds of appeal his wife did ring the Tribunal and left a message with a member of staff, who said she would pass it on.
3. Most unfortunately, this message was not conveyed to the Chairman of the Tribunal before it was due to sit at 10.00am. The Tribunal waited 10 minutes and the case was then called on. The Respondent, which was represented by a solicitor, asked for the case to be dismissed pursuant to rule 11(3) of schedule 1 of the Employment Tribunal Constitution and Rules and Procedure Regulations 2001. As the Applicant was not present, the Tribunal duly dismissed the application.
4. Mr Williams then arrived and the Tribunal sat again. Fortunately, the Respondent's solicitors and witnesses had not left the building. The Tribunal listened to Mr William's explanation for his late arrival, and was then told about the telephone call. The Tribunal decided to treat Mr William's application to proceed with the hearing as an application for a review of its earlier decision, and having considered the matter confirmed its earlier ruling.
5. The Tribunal appears to have focused solely on the fact that Mr Williams was late and had, in its view allowed insufficient time to get to the Tribunal. Everybody else, it said, had arrived in time. The Tribunal realised that dismissing his claim would cause prejudice to Mr Williams, but also considered there would be prejudice to the Respondent if it did not do so. It also held that as the Tribunal had lost an hour of court time, there was a real possibility that the case would go part-heard. Accordingly, it held that the balance of prejudice favoured confirming the original decision to dismiss the application. Mr Williams now appeals against the Tribunal's two rulings.
6. With respect to the Tribunal, it seems to us that the decision to dismiss Mr Williams' claim without a hearing on the merits was plainly wrong in law for a number of reasons. Firstly, it is difficult to see what prejudice there would have been to the Respondent in the matter proceeding. The Respondent was represented: its witnesses were present, and it was ready to go. On the other hand, the prejudice to Mr Williams was substantial. He was being denied a hearing of his claim on its merits.
7. Secondly, whilst the Employment Appeal Tribunal acknowledges that the Employment Tribunal is master at its own procedure, the Tribunal in this case went ahead in ignorance of a message which had been given to a member of its staff, which was not conveyed to the Chairman of the Tribunal in time, as it should have been. In these circumstances, dismissing a claim when only ten minutes had passed from the time the hearing was due to commence seems to us disproportionate. Furthermore, once the Tribunal had been told that a message had been left, it seems to us to have been wrong for the Tribunal not to have taken that factor into account in its reasons. All it says is that Mr Williams did not allow sufficient time. In our view it is unfair for the Tribunal not to take into account the failure on the part of a member of its staff to alert it to the fact that Mr Williams was delayed.
8. The Tribunal had lost 50 minutes, and feared it might go part heard. In our view, that is not a reason to dismiss an application without a hearing. It may be that the Tribunal would have needed to sit on for an extra 50 minutes in order to finish the case. But once again, dismissal of the claim seems to us a wholly disproportionate response.
9. Thirdly, as the Employment Appeal Tribunal observed at the preliminary hearing of this appeal on 20 February 2002, Rule 11(3) provides: -

"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 of rule 10(5) and any written answer furnished to the tribunal pursuant to rule 4(3)"

10. As Mr Justice Holland, giving the reasons of the EAT at the preliminary hearing observed, averting to the papers before the Employment Appeal Tribunal, there was no indication whatsoever that the Tribunal gave Mr Williams' originating application any consideration before dismissing it. We respectfully agree with those observations and for all these reasons we think the Respondent is wise not to have resisted this appeal. The appeal will accordingly be allowed. We set aside the Tribunal's order and direct that Mr Williams' application be heard by a differently constituted Tribunal at the earliest opportunity.
11. In our view this is a classic example of more haste less speed. Instead of being heard and determined on its merits on 13 August 2001, the case is now unlikely to be heard until the summer of 2002. Nearly a year will have been unnecessarily lost. It is for this reason that we propose to direct that the hearing before the Tribunal be now expedited.