Ayton v London Underground Ltd & Ors [1993] UKEAT 46_93_2911

EAT
Ayton v London Underground Ltd & Ors
[1993] UKEAT 46_93_2911 · 1993-11-29
MR JUSTICE TUCKER : By her Originating Application Ms Pearline Ayton asked an Industrial Tribunal to decide whether she has suffered racial discrimination, alternatively sex discrimination and unfair dismissal on the grounds of race and sex. She was employed at the Euston Underground Station by the Respondents. Attached to her Originating Application was a notice of the grounds of that application lettered paragraphs (a) to (k) inclusive and in that document the Appellant sets out in some detail the complaints which she would have sought to have made against the Respondents. That document was forwarded with the Originating Application to the Industrial Tribunal. The Respondents themselves entered an appearance to it and they too set out their case in a document which we have before us and which Ms Ayton will have seen. They deal with the lettered paragraphs of her application and make their comments upon them.A date was set for the hearing of the application. The Tribunal met at London North. The Chairman and members assembled and the solicitor for the Respondent appeared, but the Applicant did not appear and she was not represented either. She tells us the reason was that shortly before the date of the hearing her representative told her that he could not attend. It is difficult, and indeed impossible for us to understand why she did not attend on her own. She has attended before us. She is, if we may say so, a smart and articulate young lady well able to express herself but she chose not to appear before the Tribunal. Her only explanation, if it be one, is that she would have received better advice from her representative. May be that is so, but we cannot at all understand why that prevented her from appearing either in order to present her own case or, if need be, to apply for an adjournment in order that she could be properly represented; so when the matter was heard it was heard without the benefit of her presence or representation. Nevertheless, the Tribunal had before them, as we have indicated, the grounds of the application as set out in the document IT1 N0.10 and the Respondents' answer to that application. The Tribunal reached its conclusions.In paragraph 2 they say this:
"Mr Wagstaff has invited us to dismiss the Applicant's claim. On the claims based on race or sex discrimination it is for the Applicant to adduce some evidence to satisfy us that there has been such discrimination. Without such evidence we cannot make such a finding. It is also for the Applicant to satisfy us that there has been a dismissal. At the date of her Originating Application, there had been a dismissal but that dismissal had been dealt with, as I have already stated, on 31 July 1991 when she was reinstated and was continuing in the employ of the first Respondent... There is no evidence of a dismissal. On the contrary, there is evidence that the initial decision to dismiss was substituted by a "suspended dismissal". In those circumstances, the unfair dismissal claim fails and is dismissed as are the claims based on alleged race and sex discrimination."
From that decision the Appellant now seeks to appeal. The grounds of her appeal are that the Industrial Tribunal erred in law in that:
"My evidence was not considered. Because I was not there because of complications with my representation, although I have the sufficient evidence and would like my case to be heard."
The evidence to which she refers is the document IT1 N0.10. Together let us assume with the letter addressed to the Registrar, The Employment Appeal Tribunal, dated 9 December 1992. Even if it were open to us to consider the matter and in our view it is not, we would see nothing in those documents which could possibly lead us to conclude that there had been racial or sexual discrimination or unfairness in her dismissal. But it is not in our view open to us to consider the matter, nor would it be open to a Tribunal if we were to refer this matter for a full hearing.As we have tried to explain to the Appellant, this Appeal Tribunal can only interfere if there is shown to us to be an error of law or perversity on the grounds of the Tribunal. Neither of those things happened here. We are not passing judgment on her case. Let us make that plain. We are seeking to see whether a valid criticism can be mounted against the decision reached by the Industrial Tribunal. She did not appear before that Tribunal. The Tribunal had to make a decision in the absence of any application for an adjournment. They made a decision and in our view no fault can be demonstrated as to that decision.Accordingly this is not a case which in our view should go to a full hearing and this appeal is dismissed.