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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Fraser v S Tolliday & Hedley House Motel Ltd [1996] UKEAT 841_96_1311 (13 November 1996) URL: http://www.bailii.org/uk/cases/UKEAT/1996/841_96_1311.html Cite as: [1996] UKEAT 841_96_1311

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APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether Mr Fraser has an arguable point of law on which he can appeal a decision of an Industrial Tribunal held at Norwich on 17th April 1996.

The tribunal were considering an application by a former employee of Mr Fraser who had worked at the Hedley House Hotel, that there had been an unfair dismissal application by her. The hotel had been sold, so as a second respondent to her application, she had joined the transferee of the business. There were therefore two issues for the tribunal consider. First, was the applicant unfairly dismissed, and if yes, was that a liability which fell only on Mr Fraser or did it fall on the transferee.

The circumstances leading up to this appeal may be shortly summarised. Having been served with the originating application, Mr Fraser filed a notice of appearance dated 29th November 1995, which was received by the Industrial Tribunal at Bury St Edmunds on 4th December 1995, setting out his case as to why it was that the applicant had been dismissed, and his case for saying that she had not been unfairly dismissed.

In accordance with the tribunal procedure, he was invited to and did send to the Industrial Tribunal a statement of evidence from the witness whom he proposed to call in support of his contention, namely, I think, the general manager who was employed by Mr Fraser to run the hotel, and who subsequently transferred across to the transferee in circumstances in which, as Mr Fraser put it to us, the general manager then had something had a conflict of interest.

The Industrial Tribunal had made, no doubt at the request of the applicant, witness orders both against, as we understand it, Mr Fraser and also his witness, and those witness orders were rescinded. Mr Fraser did not have the benefit of legal advice. He pointed out that he was not eligible for Legal Aid, otherwise he would have taken legal advice as to his position.

He misled himself into believing that because the witness orders had been rescinded, in some way or another the case which had been fixed for a hearing date, of which he had been informed, would not be taking place at all. He told us in his Notice of Appeal and in the letter that was sent subsequently to it, that he was told by Bury St Edmunds:

"That I did not have to appear that day."

If, as is the case, he had asked the Industrial Tribunal whether he was obliged to appear at the hearing of an application for unfair dismissal, he would and should have been told that he was not obliged to appear, but that it was entirely up to him whether he did so or not.

In this case we are not satisfied that the reason why Mr Fraser did not appear at the Industrial Tribunal on the date of the hearing was because he had in any way been misled. The reason why he did not appear was because he had misled himself, as a result of not obtaining proper legal advice as to his position, into thinking that the hearing would not be taking place, despite the fact that he had been notified by the Industrial Tribunal that it was due to take place, and he had received no contrary notification. It seems to us that the conversation on the telephone could not reasonably support a belief that the hearing which had been notified to him, was not going to take place.

Furthermore, when the decision of the Industrial Tribunal had been communicated to him, we must express some surprise that Mr Fraser did not immediately between 8th May and 4th June 1996 get hold of the Industrial Tribunal, if he believed that he had been misled by them, complaining that he had been so misled. We think that this is significant.

In these circumstances, we are not satisfied that any failure by Mr Fraser to attend the hearing was induced by the wrongful action in any way of the Industrial Tribunal. In those circumstances the position is simply this: the Industrial Tribunal were entitled to hear the matter in the absence of the respondent. They were obliged if they did so, to take into account the written material which was presented to them, whether in the IT3 or in any witness statement. It is plain from the terms of the decision itself that they did have regard to those matters.

Accordingly, we cannot identify any arguable point of law in this case, such that is fit to go before a full hearing of this court.

Accordingly, we dismiss this appeal, although we do recognise that Mr Fraser is now left with a sense of injustice.