United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B UDUJE (of Counsel) Instructed By: Webster Dixon 21 New Fetter Lane London EC4A 1AW


 


JUDGE D M LEVY QC:

1. This is the preliminary hearing of an appeal by Mr Philip Samuel ("the Appellant") from a decision of a Tribunal sitting at London South on 29 January 2001. On that date, for reasons into which we will go in a little detail in a moment, the Tribunal dismissed the Appellant's complaint against racial discrimination and the appeal against that decision was lodged on 23 March 2001.
2. The Extended Reasons, sent to the parties on 9 February 2001, show that the reason for the dismissal of the case was the non-attendance on that day of the Appellant. The grounds of appeal against the decision are three and read:

"The Tribunal should have exercised its discretion and adjourn [sic] the hearing on 29 January 2001 for the following reasons:

a) Though the Appellant was late he had kept the Tribunal informed and had arrived shortly after 11 am. A short adjournment should have been granted particularly as the case was listed for 7 days."

That, we think, is the primary ground of appeal.

3. The facts are as shown in the Extended Reasons of the Employment Tribunal as follows:

"The case was listed to be heard at … 10:00 am on 29 January. At about 10:00 am the Applicant telephoned the Tribunal and left a message with a clerk, saying that he had 'just passed Clapham Junction' and expected to be at the Tribunal within the hour. There was no explanation for why he was not at the Tribunal at the due time. At about 10:30 am the Applicant left a further telephone message, stating that he expected to reach the Tribunal by 11:00 am. Again there was no explanation, the Applicant merely stating that he was 'delayed'. Not without hesitation we decided to delay the hearing until 11:00 am. In the event, the hearing commenced at 11:05 am."

The Tribunal then heard a submission from Counsel who submitted the Tribunal should dismiss the Appellant's application because the case could not get off the ground without his evidence, as it consisted entirely of allegations which it was for him to prove, all being denied by the Respondents.

4. The Extended Reasons states all the matters of which the Tribunal took account and, having looked at those with some care, they said:

"We simply took the view that that case had been delayed more than was reasonable and that we must proceed with it. That being our view, we concluded that Ms Chan was correct in her submission that the only proper course must be to dismiss the Originating Application since without evidence it could not succeed. We saw nothing in the formal documents on which, in the absence of evidence from, or on behalf of, the Applicant, it might have been permissible for the Tribunal to draw any inference of racial discrimination. Accordingly, we determined that the complaint failed, and the Originating Application was dismissed."

5. The Extended Reasons go on to say that the Appellant had attended the Tribunal shortly afterwards, accompanied by a representative, although there was no representative on the record. It appeared that, after he had been told that the case had been dismissed, he left the premises. There is no suggestion that, before leaving, he made any effort at the time to find out if Counsel for the Respondents was still there or if the Tribunal could be re-called.
6. Mr Uduje, who has said all that could be said on behalf of the Appellant today, has referred us to the page in Harvey on Industrial Relations and Employment Law dealing with a failure to appear. It is at T [827 and 828] and he says this is a straight perverse decision or wrong exercise of judicial discretion by the Employment Tribunal. The passages in Harvey read:

"827:

If a party fails to appear or be represented at the hearing, the tribunal may either (i) dismiss the application, if that party is an applicant; (ii) dispose of the application in the absence of the party, whether he is applicant or respondent; or (iii) adjourn the hearing to a later date (r 11(3)). Before dismissing or disposing of the application, the tribunal must consider his originating application or notice of appearance, any written representations he may have made under r 10(5), and any written answer provided under r 4(3)."

"828:

The discretion to adjourn must be exercised judicially. It will be wrongly exercised if the tribunal refuses an adjournment knowing that a party intends to appear, but is unable to do so, for example, because of bad weather [an example is given of where it was wrongly exercised]. Moreover, where an applicant informs the tribunal that he will not be able to attend due to ill-health, rather than dismiss his application, the tribunal should inform him of his right to apply for an adjournment [an example is given]. Another example of the wrong exercise of the discretion is [an example is given], where it was held that a tribunal should have adjourned the case upon being told that the company secretary who had represented the respondents at an earlier hearing had left their employ, and that nobody else in the company knew anything about the case."

7. Here, Mr Uduje says that the remarkable thing is that this was a seven-day case and in those circumstances the Tribunal, having been told he was on the way to its premises, should have waited longer.
8. The fact that it was a seven-day case does not, of course, mean that the Tribunal would be sitting twiddling its thumbs if they dismissed this case. There are always floaters in the wings at most Employment Tribunals. It seems to us that, although some examples are given in Harvey of what are wrong exercises of discretion, what happened in this case cannot be said to be a wrong judicial exercise of it. Paragraphs 4 and 5 of the Extended Reasons fully explain why the Tribunal reached its decision.
9. Mr Uduje has drawn our attention to one nicety in the pleadings where it could be said that the defendant should have been asked questions by the Tribunal but, given the whole of the application through which he has carefully taken us and the further particulars, it seems to us that that is not something on which the Tribunal can be criticised. In our judgment, therefore, this particular ground of appeal fails.
10. The second ground of appeal is this. On 7 December 1999, a Chairman of Tribunals had directed that the case should not be listed until after the outcome of the internal resolution. By letter of 5 January 2001 the Appellant set out why and how the internal resolution had not been completed and requested an adjournment based on the directions issued on 7 December 1999.
11. The Treasury Solicitors in a letter dated 18 January also stated they had no objection to an adjournment. The Chairman's reasons given on 12 January 2001 rejecting that explanation and refusing an adjournment, it is submitted, are unsatisfactory. Well, that is as may be. The position is that, if either party wanted to have an adjournment, notwithstanding the decision of the Chairman on 12 January 2001, an application could have been made to this Employment Appeal Tribunal to grant one. The fact that they did not is not a reason for suggesting there was a wrong exercise of discretion when the matter was called on for hearing.
12. The final ground of appeal is this. The Respondents had provided the documents they wished to include in the hearing bundle to the Appellant. At mid-day on the last working day, before the hearing, the Tribunal was copied into correspondence between both parties and would, it was submitted, have been aware of the unreasonableness of the Respondents' actions, particularly as the Appellant was in person and did not have access to the resources enjoyed by the Respondents.
13. What was before the Tribunal on 29 January 2001 was not the problems with correspondence bundles but the problem of a litigant in person who rang the Tribunal at 10:00 am saying that he was at Clapham Junction (by train is about a quarter of an hour or so from Croydon) This call was received at the time the hearing was due to commence. He rang a second time at 10:30 am to say he was nearly there. He had not arrived by 11:00 am. It does not seem to us that this is any proper ground for saying that discretion to dismiss was wrongly exercised, or that the discretion was wrongly exercised other than judicially.
14. We have considered all other submissions which Mr Uduje has made to us today but, in our judgment, they do not amount to anything which suggests that this appeal could succeed if allowed to go further and, therefore, we will dismiss it at this stage.
15. We will say at this stage, we have had with our papers the application for review which was made by the Appellant subsequent to the Notice of Appeal, and have read that and the decision of rejection of that application promulgated by the Employment Tribunal on 5 December 2001. In reaching our decision we have not taken account of the reasons given by the Employment Tribunal in the review decision but we would say that, having reached our conclusion, in our judgment what is said by the Employment Tribunal show proper reasons to support the original decision.
16. In the circumstances we would thank Mr Uduje for his submissions which we cannot accept and therefore we dismiss this appeal.