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 ELIAS:

1. This is an Appeal against the Decision of the Chairman sitting alone, in Birmingham, in which he found that the Applicant's complaint of discrimination contrary to the Disability Discrimination Act 1995 was misconceived and should be struck out.
2. A Hearing was fixed for a separate complaint of discrimination contrary to the Race Relations Act and the application for costs made by the Respondent Council.
3. Neither the Applicant nor the Respondent were represented before me. The Applicant has sought an adjournment of this Appeal but, for reasons I will briefly give in a moment, that is refused. I should set out briefly the rather curious background to this particular Appeal.
4. Following the Decision on 6 March, to which I have made reference, the Applicant Appealed to this Tribunal on 22 April 2003. He also sought a review of the Tribunal's Decision and that was rejected by a decision promulgated on 21 May 2003. In a letter dated 20 May 2003, the Applicant withdrew his application to the Employment Tribunal. There appears to have been some correspondence between the Applicant and the Tribunal about this and the Tribunal indicated to him that they understood that this was withdrawing all his claims. He has never sought to gainsay that. As a consequence of this, the Employment Appeal Tribunal wrote to the Appellant on 6 June 2003 following a telephone conversation between an officer in the EAT and the Appellant. He was asked, in the light of his having withdrawn his application to the Employment Tribunal, either to withdraw the Appeal or to give reasons why the Appeal should proceed. Letters chasing up this matter were sent by the EAT on 27 June and 10 July 2003.
5. There has been no response from the Appellant until a letter received on 21 July in which he said that he now had insufficient notice to prepare for his case. He also indicated that if the hearing were to go ahead, he would fax Medical Reports that he presented to the Tribunal at the hearing at the review stage.
6. The Respondents have sought their costs in this matter, in the total of £450. They have not appeared before me today, in order to save costs. They say that the application now is wholly misconceived given the fact that the Applicant has withdrawn his appeal. They submit that, in the circumstances, the Appellant has acted wholly unreasonably in not formally abandoning this Appeal, as he ought to have done.
7. The first issue is whether or not to grant an adjournment. I am certainly not prepared to do that. The Appellant has known for a long time that the case was scheduled to be heard today, he has not replied to correspondence, he has given no indication as to why he considers this Appeal can be pursued, notwithstanding that he has withdrawn the matter from the Employment Tribunal. He has had plenty of time to prepare for this case. This is not a case of a sudden illness which precludes him from attending today and, accordingly, the application for an adjournment is refused.
8. As to the substance of the matter, I do not see how an Appeal can succeed in circumstances where the application to the Employment Tribunal has been withdrawn. There is no outstanding claim on foot in respect of which the Appeal can be pursued. I should add, in any event, that having looked at the substance of the matter briefly, the Application in any event seemed to me to have little prospect of success. The Applicant, in his letter of 21 July, is seeking to rely upon medical reports which I have not seen, but it is plain from the Decision of the review Tribunal that they were satisfied that such medical information as the Applicant was seeking to rely upon before then was available and should have been produced at the earlier Hearing.
9. In the absence of any representation from the Applicant, I would be reluctant to say categorically that the Appeal was bound to fail, but it is certainly extremely weak, even if he had not withdrawn his applications.
10. I turn to the question of costs. I do have some sympathy with the Council. It appears that this Applicant may have lodged a number of claims against different Councils over the years. They feel that he had acted quite unreasonably in not withdrawing his Appeal and that they have incurred certain costs as a consequence. But it seems to me that the Respondents ought to have appreciated that, notwithstanding this irritation, there was really no way in which this Appeal could succeed if the claims have been withdrawn from the Tribunal.
11. In the circumstances, albeit not without sympathy for the Respondents, I am not prepared to award costs. I should add that I have received, today, a communication from the Appellant in which he sets out certain grounds upon which he considers the Appeal should succeed. Suffice to say that they do not, in my view, demonstrate that the Decision of the Industrial Tribunal, made back in March, was wrong and, as I have indicated, there is apparently a reference to material which was not before the Tribunal and could have been. In all the circumstances, I dismiss the Appeal, but I do not award any costs against the Appellant.