At the Tribunal | |
Before
HIS HONOUR JUDGE J MCMULLEN QC
MS K BILGAN
MR A E R MANNERS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised 17 June 2003
For the Appellant | MR DECLAN O'DEMPSEY (of Counsel) Instructed by: Equal Opportunities Commission Arndale House Arndale Centre Manchester M4 3EQ |
For the Respondent | MR DAVID BARR (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS |
HIS HONOUR JUDGE J McMULLEN QC
Introduction
The issues
16 "The Directions set out above were made with the agreement of the parties at the hearing, after we had given our oral decision as to jurisdiction. We have, however, added the usual sanctions, with a view to encouraging the parties to abide by the timings they agree and to minimise the risk of further delay."
A reference was made to further medical evidence and the requirement that that be made available well in advance.
The Legislation
11 (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 of rule 10 (5) and any written answer furnished to the tribunal pursuant to rule 4 (3)."
The Decision
The Appeal
EAT Directions
The Parties
The Employment Tribunal Findings
6 "The documents demonstrated that he … was not an appropriate comparator."
The EOC would not assist the Applicant in pursuit of her case, once those documents had been revealed to it.
(1) That the application had been lodged a year prior to the hearing and sufficient time had been given to her team and she had come to the Tribunal without even her own witness statement.
(2) The Applicant had contended that the EOC might restore its funding if more evidence had come to light. The Tribunal said that adequate time had been made to prepare the case and the Applicant could have made requests earlier.
(3) As to the claim that she could not represent herself, the Tribunal said this:
7 (iii) "The Tribunal is used to dealing with parties in person and moreover the issues in this case are such that the Applicant should be able to give evidence on her own, without a representative present. The Tribunal was prepared to assist the Applicant insofar as it is practicable."
Thereafter the Tribunal announced that it intended to proceed with the hearing.
11 "…the burden of proof is on the Applicant. If the Applicant plays no part in the proceedings there is no prospect of her satisfying that burden which is upon her. We are obliged to have regard to Regulation 10 which includes the saving of costs. No useful purpose would be served in continuing these proceedings…"
Directions
The Applicant's Case
The Respondent's Case
The Applicable Principles
(1) The postponement issue
(2) The Rule 11(3) issue
"… if Rule 9 (3) had applied in the present case it would not have resulted in Mrs Mensah being in a better position than in fact occurred. It was for her to prove that she had been relevantly discriminated against and that would require evidence. In the absence of her or a representative for her, as no evidence had been proffered by her on the neo-natal unit point, the Industrial Tribunal would have been bound to dismiss her complaint. "
Thus the principle appears to be that there is no need for a full trial on the pleadings, as long as the Tribunal considers the Originating Application and the submissions made to it.
Conclusion