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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Roberts v. Skelmersdale College [2002] UKEAT 1094_01_2509 (25 September 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1094_01_2509.html Cite as: [2002] UKEAT 1094_01_2509, [2002] UKEAT 1094_1_2509

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APPEARANCES

 

For the Appellant	MR ARTHUR ROBERTS (the Appellant in Person)
For the Respondent	MR NICHOLAS SIDDALL (of Counsel) Instructed by: Messrs Eversheds Solicitors London Scottish House 24 Mount Street Manchester M2 3DB


 


MS RECORDER ELIZABETH SLADE QC

1. This is an appeal by Mr Roberts from the Decision of an Employment Tribunal sitting in Liverpool on 13 June 2001. The Employment Tribunal dismissed Mr Roberts' claim, pursuant to Rule 9 (3) of the Industrial Tribunal Rules of Procedure 1993.
2. The circumstances in which the Employment Tribunal came to dismiss Mr Roberts' claim for unfair dismissal, briefly stated, are these. Mr Roberts' claim for unfair dismissal had been listed for hearing on a previous occasion. He had requested an adjournment for health reasons and the hearing had been vacated. The Tribunal record in their decision that on 17 April the hearing was re-listed for 13 June.
3. Mr Roberts claimed not to have received notice of that re-listed hearing until he heard from the solicitors acting on behalf of the Respondent on 7 June and thereafter he requested the Tribunal to adjourn the hearing. He made that request by contacting the Tribunal office. By fax dated 12 June Mr Roberts and the Respondent were informed that Mr Roberts' request for a postponement had been refused but Mr Roberts was told that, if the Tribunal was satisfied that he had not received the Notice of Hearing, the case would be postponed and another date fixed.
4. In the event, Mr Roberts did not attend the hearing on 13 June and the Tribunal proceeded to dispose of the matter in his absence. The Tribunal stated, at paragraph 12 of their Decision:

12 "We considered the Originating Application, the Applicant's summary of case, dated 27 November 2000, the Notice of Appearance, the amended Notice of Appearance, the chronology of events as set out above and Rule 9 (3) of the Industrial Tribunal Rules of procedure 1993.

12.1 The Applicant knew of the hearing.

12.2 He had been told twice on 12 June 2001 that the Tribunal would consider on 13 June whether to postpone the case, and that if Mr Roberts could satisfy the Tribunal that he had not received the Notice of Hearing in due time it would be postponed.

12.3 He failed to attend and did not provide any adequate reasons for his non attendance.

12.4 We therefore dismissed the claim for his non attendance."

5. Following a Preliminary Hearing at this Employment Appeal Tribunal an Amended Notice of Appeal was served and that Amended Notice of Appeal takes two points. First, it is said that the Employment Tribunal erred in law in that it failed to consider the Appellant's Originating Application and written representations prior to dismissal of his application for non attendance. It is asserted in the Amended Notice of Appeal that in accordance with Rule 9 (3) of the Rules, due consideration to the documents referred to has to be given and that the Tribunal failed to give such due consideration.
6. Further, or in the alternative, it is asserted in the Amended Grounds of Appeal that the Tribunal failed to give any, or any proper, reasons relating to such consideration, or the reason why the Appellant's case was dismissed, notwithstanding the provisions of Rule 9 (3).
7. At the relevant time the applicable Rule was contained in the Employment Tribunals Constitution etc. Regulations 1993, Schedule 1, paragraph 9 (3), that provides:

9 (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 or Rule 8 (5) and any written answer furnished to the Tribunal pursuant to Rule 4 (3)."

8. Mr Roberts appears without representation before us today. He has, in the voluminous material produced before us, raised a number of grievances about the conduct of his former employer and in his oral representations to us has suggested that he has many complaints about the course of proceedings before the Employment Tribunal. He further repeated what he had said to the Employment Tribunal staff that he had not received notice of the hearing on 13 June. However, that matter, which we did canvass at some length this morning, is not a point raised in the amended Notice of Appeal and we therefore do not and cannot take it as a separate ground of appeal.
9. Mr Siddall, who appears for the Respondent, urges us to take the view that the Tribunal, having referred in paragraph 12 of its Decision, to having considered the Originating Application, the Notice of Appearance and other documents, should not find that the Tribunal erred in law in failing to take the required step of considering those documents, as set out in Rule 9 (3) of the then rules of the Employment Tribunal. Further, he says that on a proper construction of the Rule, all that is required is a consideration and not a due consideration, as is asserted in the Notice of Appeal.
10. He fairly acknowledges that in a claim for unfair dismissal, as this was, the burden of proof is on the Respondents to show the reason for the dismissal and then it is for the Tribunal (the burden being placed neutrally) to consider the fairness of that decision.
11. He also acknowledges that, in this case, the Tribunal heard no evidence or submissions on the substance of the case but decided to dismiss the application on the basis outlined in the Tribunal's decision. That basis strongly indicates that the matter which weighed with the Tribunal in taking their decision was the absence from the Tribunal on 13 June of the Applicant, the Appellant before us.
12. Mr Siddall contends that if we were to find that the Tribunal had erred in law in exercising its powers under Rule 9 (3), nonetheless we should uphold the decision upon the basis that even if it had correctly addressed its powers under 9 (3) it would have come to the same conclusion. In support of that contention he suggests that if the Respondent had given evidence and made submissions it was more likely than not that the Tribunal would have accepted the Respondent's case as to the reason for the dismissal and as to its fairness.
13. Mr Siddall, in the course of his submissions, drew our attention to the case of Mensah v East Hertfordshire NHS Trust [1998] IRLR 531. Whilst pointing out fairly that the Court of Appeal in the judgment of Peter Gibson LJ at paragraph 16 expressly stated that Rule 9 (3) did not apply directly to the circumstances the case under consideration in Mensah, nonetheless, he seeks to gain some comfort from the judgments of the Court of Appeal in that case for contending that the Employment Tribunal in this case did not err in law by not giving further obvious consideration to the material before it.
14. Rule 9 (3) of the Employment Tribunals Constitutions etc. Regulations 1993 gives Employment Tribunals a discretion to dismiss or dispose of cases before them in the absence of a party. That Rule also gives a power in the Tribunal to adjourn the hearing to a later date. The power to dismiss arises if the party who has not appeared before the Tribunal is an Applicant. The power to dispose of a case in the absence of a party arises in any case, i.e. whether it is the Applicant or the Respondent who fails to appear.
15. There is a proviso to the exercise of this discretion and that is that before dismissing or disposing of an application in the absence of a party, the Tribunal shall consider his Originating Application or Notice of Appearance and any representations in writing presented by the absent party.
16. So, as a matter of construction, in our judgment the Rules require, before the exercise of a discretion as to whether to dismiss or to dispose of an application, that there should be a consideration of the material produced by the party who is absent from the hearing.
17. In our judgment that consideration is material to the exercise of the discretion as to whether to dismiss or to dispose by another means of the application and also material to the decision as to what is to be done on any disposal.
18. The Tribunal in this case had before it a claim for unfair dismissal. The dismissal was admitted and in those circumstances the burden of proof was on the Respondent to establish the reason for dismissal and to show that it was an admissible reason. Thereafter the enquiry as to whether the dismissal was fair in all the circumstances attracted no burden of proof on either party but was a matter to be decided by the Tribunal upon the evidence before it.
19. In the judgment of the majority of this Employment Appeal Tribunal the Tribunal did not give adequate reasons for its decision to take the course of dismissing the Originating Application. The reasons for the dismissal of the Originating Application, such as they are, indicate to the majority that the reason for taking the course of action was the non appearance of the Applicant. Whilst paragraph 12 records that the Originating Application had been considered, the Decision gives no indication whatsoever as to why the Employment Tribunal, having considered the Originating Application and other documentation, considered it appropriate to adopt the course of dismissing the application without disposing of the application by other means such as inviting the Respondents (who were present) to lead their evidence and make submissions as to what the reason for the dismissal was and as to why the dismissal was fair in all the circumstances.
20. In the view of the majority, the documentation, referred to by the Employment Tribunal in paragraph 12, does not provide an obvious answer as to why the application should be dismissed. The reason given by the Respondent in the amended Notice of Appearance for the dismissal is this.

2 "On 14 October 1999, the Applicant failed to collect the Respondent's minibus to undertake his agreed driving duty. A disciplinary hearing was held on 3 December 1999, at which the Applicant was accompanied by his trade union representative.

3 The Respondent was satisfied on the evidence available at the disciplinary hearing that the alleged behaviour of the Applicant had taken place. At that time, the Applicant had a current final written warning on his file (issued 27 August). The decision was taken to dismiss the Applicant and a payment in lieu of notice was made."

It is to be noted that there appears to be no material to show the circumstances of the failure to collect the minibus, nor indeed any indication as to whether the current final written warning was for similar conduct or indeed for what type of conduct that warning was given.

21. In all the circumstances, and in the absence of any indication from the Tribunal in its Decision, as to why it took the course of dismissing the application, rather than disposing of the application by inviting or requiring the Respondent to give evidence and to make submissions on the matters which it was to consider, the majority considers that the Tribunal has failed to give adequate reasons for its decision.
22. Further, as to the argument as to whether the Rule 9 (3) requires "due consideration", as is asserted in the amended Notice of Appeal, of the Originating Application and case summary, as a matter of construction we consider that the requirement to give such consideration is a statutory pre-condition to the exercise of the discretion and, since the requirement is there in the Rule, we consider that proper consideration has to be given to the documents there referred to. We do not consider that this is any gloss or addition to the language of the Rule, but that proper weight has to be given to its presence as a pre-condition of the exercise of discretion.
23. We reject the argument that the Decision should be sustained on other grounds. I referred in the course of the judgment to the amended Notice of Appearance which was amongst the documentation, referred to by the Employment Tribunal, and indicated that it did not provide an answer, without more, to the claim brought by Mr Roberts.
24. The other points raised in the Respondent's Notice at paragraph 3 (i) – (v) do not, in our judgment, demonstrate that the Decision of the Tribunal was plainly and unarguably right.
25. As we have indicated in this judgment, on the documentation before the Tribunal the fact that it would be the Respondents alone who would have given evidence and made submissions, does not necessarily mean that the Tribunal would have accepted that this was a fair dismissal in all the circumstances.
26. A member of the Tribunal dissents from the judgment of the majority. The dissenting member relies on the history of the listing of these proceedings as set out in the Decision of the Tribunal and considers that the decision to dismiss the application was justified on the basis of that history and does not consider that the Appellant has demonstrated that the Tribunal has erred in law in its application of Rule 9 (3).
27. As we have said earlier in this judgment, there was some consideration in the course of this appeal as to whether due notice had been given to Mr Roberts, by the Employment Tribunal, of the hearing. We felt some concern as to whether due notice had in fact been given. However, that point has not been raised in the amended Notice of Appeal and the Notice of the hearing was produced to us. Our judgment is based on the grounds set out in the amended Notice of Appeal and does not seek to address in any way the question of whether notice of the hearing was given to Mr Roberts.
28. For the reasons given by the majority in this judgment, we allow this appeal and order that the application for unfair dismissal be remitted to a differently constituted Employment Tribunal for hearing.
29. Mr Siddall, we refuse your application for costs. If the Employment Tribunal had properly exercised its discretion under Rule 9 (3) it would have disposed of this application in a way other than by dismissing it without hearing evidence and argument from the Respondents.
30. As for your application for permission to appeal, the majority refuse your application.