United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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


 


MR JUSTICE BURTON (PRESIDENT):

1. This is a further consideration under Rule 3(10) of the dismissal under Rule 3 of an appeal by Mr Sahota against the decision of the Employment Tribunal at Birmingham on 17 July 2002, not to review an earlier decision that it had made on 23 May 2002, that the Appellant was not a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995, so that his claim for disability discrimination by the Respondent, Dudley Metropolitan Borough Council was dismissed.
2. The Appellant did not attend the hearing on 26 April 2002, when the Respondents did attend, and the Tribunal tried the case in his absence fully, and came to the conclusion that, on the evidence before it, he did not have a disability as defined. In paragraph 14 the Tribunal concluded that the onus on establishing that he is a disabled person falls on the Applicant, and it was satisfied that on the medical evidence before it, which it considered, he did not have a relevant condition, in the sense that it did not comply with the statutory requirements under the Act.
3. There was no appeal, and this does not amount to an appeal in respect of that decision. The appeal is only in respect of the refusal of a review. In those circumstances there is no consideration of the underlying merits, although had there been a powerful case put forward, even now, to challenge the original decision, that might have been relevant for consideration.
4. What is now said by Mr Sahota, the Appellant, is that he takes issue with the decision of the Tribunal and he asserts that he, indeed, is and was, relevantly disabled. But, as we have indicated, no direct engaging with the basis of the decision, which is set out in detail on that appeal, is attempted by the Appellant, nor any appeal against the decision.
5. The basis of the application for review is that he had effectively good reason for not attending the hearing in April. The peculiarity about the facts of this case is this; that whereas he applied, by way of review, and was unsuccessful at the hearing on 17 July 2002 and has appealed against that dismissal, since putting in his appeal on 29 July 2002, he has made a further application for a review to the Employment Tribunal.
6. This Appeal Tribunal would not have known about that further application for review had it not been for a letter dated 10 February 2003, sent to the Court by the Respondent, which put this Tribunal on notice that there had been a further application for review, which had been refused. This is thus, effectively, the fourth time that this matter has been before the Courts, albeit the first time at the appellate level, but it is inevitably the case that when this Appeal Tribunal is on appeal, considering the legality and appropriateness of a decision on review, we are addressing a discretion of the Employment Tribunal, and the best body to decide whether it is appropriate to reopen a decision which it has already made, is the Employment Tribunal itself; and here it has had no less than two occasions when it has been prepared to look again at the question as to whether it should, or should not, reopen that original decision, and on each occasion has concluded that such course is inappropriate.
7. The basis of the review application, both in July and again in December, before the Employment Tribunals, was the same; that is, that the Appellant said that he sent to the Tribunal a fax on 11 April 2002. The reason why he made yet a further application on review is that he had not, on the first occasion, been able to find what he said was the original fax. That fax said as follows:

"Due to unforeseen circumstances my father is critically ill abroad after being viciously attacked. I therefore need to go abroad at short notice and would be grateful if you could stay proceedings until my return to this country on 20 May 2002."

8. That fax was, as appears, sent fifteen days before the hearing date fixed for 26 April. There had been an interlocutory hearing on 17 May 2001, at which the Appellant had then been represented by Solicitors, who had ceased to act for him. A Notice was sent to the parties confirming the date of the hearing as 26 April 2002 on 1 March 2002. The Tribunal was not expecting the Respondent to attend the hearing, because it had been given notice by the Respondent that the Tribunal would be left to decide the matter, as far as it was concerned, on the basis of considering its written submissions without need for attendance by the Respondent; but, if the Appellant wanted to add anything to his case, he certainly needed to attend and, it seems, was given notice to attend, and paragraph 9 of the Tribunal's Decision on 25 April records that the Tribunal was expecting the Applicant to attend, and that Mr Sahota had written to the Tribunal as long ago as 28 January 2002, confirming that he was arranging for legal representation.
9. As we have indicated, the Tribunal went ahead in his absence, and considered the evidence before it with care, and concluded, in paragraph 13, that there was no evidence before it on the adverse effect on the Applicant, nor was there any evidence before it on the Applicant's ability to carry out normal day-to-day activities.
10. The fax, if sent, and for the purpose of the latest review decision the Employment Tribunal was prepared to assume in the Appellant's favour that it had been sent, sought a stay of proceedings until after his return to the country on 20 May, and thus implicitly an adjournment of the hearing date of 26 April. If sent, it appears that that fax did not arrive. In his Notice of Appeal before me today, against the dismissal by the Registrar under Rule 3, followed by this renewal of his appeal under Rule 3(10), the Appellant asserts that one of the grounds of his application for review made before the Employment Tribunal was based on Rule 13(1)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001. Rule 13 reads as follows:

"Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that -

(a) the decision was wrongly made as a result of an error on the part of the tribunal staff;

(b) a party did not receive notice of the proceedings leading to the decision;

(c) the decision was made in the absence of a party;

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing."

11. The application for review against which this appeal is being brought was not, as would appear, put on the basis of Rule 13(1)(a), but only upon the basis of reliance on Rules 13(1)(c) and 13(1)(e) – see paragraph 15 of the Employment Tribunal Chairman's Decision. The assertion in the Notice of Appeal is that the matter falls within Rule 13(1)(a) on the basis of an assertion that the fax did not arrive through an error on the part of the Tribunal staff. That was nowhere asserted before the Tribunal itself, and was not the basis of the Tribunal's decision, and is in no way supported by any evidence, or any matter upon which I could begin to form a conclusion. So far as 13(1)(c) is concerned, that speaks for itself (and I shall return to it).
12. So far as regards Rule 13(1)(d), that relates to the existence of new evidence, which normally amounts to new evidence which would justify reconsideration of the original decision by the Tribunal relating, of course therefore, to the merits of the case. What is here said to be the case is that the Appellant has a reason for his non-attendance and that is, by definition, new evidence. It appears to me that that is no different way than saying that he has a ground under Rule 13(1)(c), coupled with a good explanation for his non-attendance. It is not the kind of fresh evidence which is had in mind by this Rule. In any event, it appears that the Tribunal approached its conclusion on exactly that basis, namely looking at Rule 13(1)(c) and (d) together, to see whether the assertion that the reason for the Appellant's non-attendance was the prior sending of the fax could justify his non-attendance, and lead to a requirement for a re-hearing by way of review.
13. The decision under Rule 13 is one entirely for the discretion of the Tribunal which has power to review on any of those grounds, but no duty to do so. Paragraph 16 of the Tribunal Chairman's Decision reads as follows:

"Although the decision was made in the absence of the parties, that fact of itself is not a valid ground for a Review because proper notice of the hearing had been sent to the parties. Even if the fax of 11 April was sent by the applicant and received by the tribunal (though there is nothing on the tribunal file to confirm this) Mr Sahota was wrong to assume that the hearing would not proceed in his absence. There was no application for a postponement and no order postponing the hearing. In those circumstances, Mr Sahota ought to have expected the hearing to go ahead, which it did."

14. The reference to Rule 13(1)(e) indicates that he has not submitted any further information, and is a perfectly understandable conclusion, but it is now clear that the application in Rule 13(1)(e) was, as I have indicated, based upon the new evidence which was said to justify Rule 13(1)(d) and is not therefore a separate point.
15. When the fax which the Appellant seeks to rely on, asserting that it was sent, was, as he alleges, found by him or a friend or colleague, then he launched the fresh review application. That is not strictly before me, because it post-dates this appeal, but it is, as I have indicated, a factor which I must weigh, because, even if I were to allow the application for review, it may well be that the outcome would have been to send the matter back to the Tribunal to reconsider, and they have reconsidered.
16. The Tribunal concluded, in paragraph 6 of the second review application decision of 20 September 2002, that the Chairman did not find the Applicant's explanations credible or convincing, and again at paragraph 7 said:

"Even if what the applicant was to say was true, and I have considerable doubts on that score, it does not detract from the fact that the tribunal had not postponed the 26 April 2002 hearing and in those circumstances, the applicant was expected to make some arrangements to deal with his side of the case. The hearing proceeded quite properly in his absence."

That, effectively, repeats the conclusion to which the Tribunal Chairman came in July 2002.

17. The question for me on appeal is whether there is any ground for interference with that discretion. As I have indicated, there is no extra evidence on the merits produced, except the assertion by Mr Sahota that it was impossible for a Tribunal to do anything other than conclude that he was disabled, although he has not addressed the actual basis upon which the decision that he was not disabled for statutory purposes was arrived at, but, in any event, the issue is whether there can be any challenge to the discretion of the Chairman of the Employment Tribunal. He has found, now on two occasions, that it was known to the Appellant that he had sent a fax (if he did) to which there was no reply, and thus had made an application for a stay, which was on that basis not granted, and yet he absented himself from the hearing, knowing that he had not obtained either a postponement or an adjournment or a stay.
18. In those circumstances the Tribunal Chairman took the view that the hearing which had gone ahead on the merits, but in the absence of the Appellant, was one which the Appellant was bound to have known would occur, and this had caused him no prejudice that he had not brought upon himself by his attitude towards the proceedings.
19. In those circumstances I conclude that this was well within the discretion of the Chairman of Employment Tribunals, and that there is no ground in law, or at all, for interference with his decision and I accordingly dismiss this application under Rule 3(10) for reconsideration of the Registrar's Order dismissing this appeal as being one without jurisdiction, because no point of law is disclosed.