United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M KURREIN (Of Counsel)


 


MR RECORDER LUBA QC

1. This is the Preliminary Hearing of an appeal brought by Mr Terry Cook arising from a decision made by the Employment Tribunal at Watford. That Tribunal, following a hearing on 19 November 2002 allowed a complaint for unfair dismissal made by Mr Trueblood, a former employee of Mr Cook, and awarded significant compensation in a sum exceeding £8000.
2. Mr Cook's task at this Preliminary Hearing has been to satisfy us that his Notice of Appeal contains an arguable point of law. In that endeavour he has been assisted by Mr Kurrein under the ELAAS Scheme. For the purposes of this judgment the relevant facts can be very shortly summarised indeed. Mr Cook operates a small heel bar/key cutting outlet in a shopping centre. He is essentially a sole trader and the main operator of the key cutting/shoe heeling service. He had employed Mr Trueblood as his sole employee. Following Mr Trueblood's departure Mr Cook continue to run the operation entirely on his own.
3. It is Mr Trueblood's case, as indicated in his Notice of Appeal, that the Employment Tribunal erred in two respects. First, (in circumstances which will be explained in this judgment) in proceeding to reach a decision in his absence. Second, in making the decision it did on the merits. With the assistance of Mr Kurrein's advice Mr Cook has indicated to us this morning that he does not proceed with the second part of his Notice of Appeal. Therefore, nothing turns on his appeal as to the actual merits of the Employment Tribunal's decision and we dismiss that part of his appeal.
4. The first part of his appeal is concerned with the circumstances of his non-attendance at the Employment Tribunal hearing. Through Mr Kurrein he relies in particular on two matters. Firstly a misleading impression gleaned from the standard notification of the Employment Tribunal hearing despatched to him by the Employment Tribunal office for the London North West region. That notice of hearing dated 4 September 2002 contains certain instructions in relation to the notification of a fixed hearing date. In this case fixed hearing date was Tuesday, 19 November 2002.
5. Amongst a number of indications contained in that notice there appears a passage in Tramlines in the following terms:

"Any application for postponement, or to amend the hearing duration, must be in writing and state the full reason. In the case of postponement request state any other unavailable dates in the eight weeks following the above hearing date."

Mr Kurrein contends that that passage may reasonably and objectively mislead a recipient into believing that if he has no availability within eight weeks following the scheduled hearing date there is no purpose or point in making a request for a postponement.

6. Secondly, Mr Cook contends that on receiving the notice we have just referred to he telephoned the Watford branch office of the Employment Tribunal service to outline to an individual there the difficulty he faced in terms of his availability for a Tribunal hearing in the light of the notice he had received. Although he subsequently wrote to the Employment Tribunal service on 23 October 2002 he did so in terms which indicated that he was 'unable to attend in person on this or any other date' and that he would make a written submission. Mr Kurrein submits that that letter was written under the previously stated misleading impression that Mr Cook, who then acted in person, had believed that any postponement could only be to a date within eight weeks of the scheduled hearing date.
7. Those then are the submissions which were made before us on the first point of law. It would not be appropriate for us to say anything about the merits of those submissions beyond recognising that they raise an arguable point of law. We have reached the conclusion the matter is arguable first by reference to the case of Holland v Cyprane Ltd [1977] ICR 355 put before us by the Appellant. In that case this Tribunal recognised that although there was no duty on Employment Tribunal staff to give advice there may be circumstances in which it is desirable for those staff to positively indicate that there is a right to apply for an adjournment (on receipt of an intimation from a party that they cannot attend the Employment Tribunal hearing).
8. Secondly, we have reminded ourselves that the Holland decision was itself delivered in November 1976, 22 years before the passage of the Human Rights Act 1998 and 24 years before its commencement. As a result of the passage of Human Rights Act 1998 we are to have specific regard to Article 6 and the fair hearing provisions it contains. Having regard to the principle identified in the Holland case and Article 6 we are satisfied, and we only need to be satisfied, that the point advanced for Mr Cook before us this morning is a sound point to the extent that it is properly arguable in law.
9. However, certain directions must be given before this matter proceeds to a full hearing. First, the Notice of Appeal must be amended so as to reflect the terms of this judgment. We direct that Mr Cook, whether he has the continued services of Mr Kurrein or otherwise, is to lodge with this Tribunal office and serve on the Respondent an amended Notice of Appeal within 14 days.
10. Secondly, Mr Cook must reduce into the form of a Witness Statement the assertion he makes in the first paragraph of his skeleton argument dated 6 June 2003 giving as much particular as possible of the telephone conversation he there refers to and the date (and if possible the time of day) on which the conversation took place. We direct that that witness statement be lodged and served on the Respondent within 14 days. The dates we are giving are to run from the date of the seal of the order which will follow this judgment.
11. Once the statement has been received, the statement is to be forwarded to the Watford office of the Employment Tribunal service with an opportunity for them to comment (if they wish to do so) on the content by reference to their records. This direction will be directed to the Regional Secretary of the London North West region of the office of the Employment Tribunals.
12. Finally, we direct that the Appellant Mr Cook is to lodge and serve on the Respondent within the same period of 14 days the leaflet or handbook sent to him by the Employment Tribunal service which is itself referred to in the letter of 4 September 2002. That is entitled 'Hearings at Employment Tribunals'. If Mr Cook has misplaced the copy he was sent on 4 September 2002 he should himself obtain a further copy and lodge and serve it. It may, in the circumstances, be sensible if that is simply exhibited to the Witness Statement which we direct he must prepare.