Iqbal v Parker & Anor [1995] UKEAT 1013_94_2711

EAT
Iqbal v Parker & Anor
[1995] UKEAT 1013_94_2711 · 1995-11-27
MR JUSTICE KEENE : This appeal arises out of a claim made against the Appellant by the two Respondents who alleged that they were his employees and sought sums owed to them as wages or in lieu of notice. The hearing of those claims was fixed for 7th April 1993. In the event there was no appearance by the Appellant on that occasion, and the decision by the Industrial Tribunal on that date went in favour of the claimants now the Respondents. They decided that the Appellant as employer had made deductions from wages in contravention of the Wages Act 1986 and that the complaints were well founded and they ordered that the sums of £212.88 and £339.00 should be paid to the two Respondents respectively.What then followed was that the Appellant applied to the Industrial Tribunal, in effect, to review its decision. He asserted that he was not the employer of the two claimants; that he had not received notification of the hearing on 7th April 1993; and he produced a certificate of incorporation of a company known as Osbourne Textiles Limited, which company he said had been the employer.The Industrial Tribunal notified the Appellant that his application for a review would be heard on 23rd August 1994 at 9.45 for 10 a.m.. Trying to put matters fairly neutrally for the moment, the Appellant arrived at the Industrial Tribunal on 23rd August 1994 in time, but left before the case was called on. The detailed accounts of exactly what happened on that occasion differ somewhat.In its decision of 23rd August 1994 the Industrial Tribunal after setting out the background circumstances said this:
"2. When the respondent reported before the hearing was due to commence at 10.00 am he notified the clerk he would be seeking an adjournment because he had been called to a Social Security Tribunal at very short notice the day before and he was told that he would have to make a formal application when the Tribunal sat.
3. At the time the parties were called into the Tribunal room, the respondent had disappeared. Some 20 to 25 minutes was allowed for him to re-appear but in the meantime a message was received in the main Tribunal Office that he had telephoned at 10.15 to say that he was notified only last evening of an independent Tribunal this morning which he was then attending and asked for an adjournment on this case for 1 1 / 2 hours when he would endeavour to get back for this hearing.4. The Tribunal sat and dismissed the application for a review as the respondent was not present to prosecute it. In any event it appeared that the grounds on which he was applying for an adjournment were most unlikely to be accepted by the Tribunal as he had been notified of this hearing date some weeks ago and it should have taken preference over any other business he had."The Appellant's own account of what happened that day is set out succinctly in his Notice of Appeal to this Tribunal, in particular at paragraphs 2 and 3. He says there:
"I arrived on time and waited well after 10am and the Tribunal panel was still not ready to hear the case.
I waited and had to go to another Tribunal in which I was assisting a person due to language difficulties.I informed the clerk that I was going to Social Security Appeal Tribunal which was not far from the Industrial Tribunal and see if I could get an adjournment so that I could return to defend my case.I rang the Industrial Tribunal at about 10.20 so that they can inform the Industrial Tribunal that I have to proceed at the Tribunal and therefore I would be unable to attend the hearing till after lunch.3. After finishing from the Social Security Appeal I headed for the Tribunal but I was informed that the Tribunal had already reached its decision. I waited and discussed the matter with members of the Tribunal staff and was informed that I would receive the decision by post."Before us today, the Appellant has argued that the Tribunal's decision on that occasion, 23rd August, in failing to stand the case out until the afternoon amounted to an error of law, and is therefore susceptible to the jurisdiction of this Appeal Court.The Employment Appeal Tribunal at a preliminary hearing of this matter ordered that the Appellant file an affidavit with supporting documents. When those in due course were filed, the affidavit was sent to the Industrial Tribunal Chairman for his comments. His comments dated 11th May 1995 broadly follow what was said in the Industrial Tribunal's decision in dealing with the pattern of events on 23rd August 1994. The Chairman confirms that the Appellant did arrive between 9.45 and 10 a.m. on the relevant day. However, the Chairman's comments go on to say this:
"He certainly did not wait until well after 10.00 am. Following the normal practice just before 10.00 am the clerk interviewed the parties and gave the attendance sheet to me when I asked him to put the parties in the Tribunal room. The applicants were there but the clerk could find no trace of Mr Iqbal."
The Tribunal waited for an additional time. The Chairman's comments then continue thus:
"At 10.15 am another clerk took a message recorded on file from the appellant who was apparently at another Tribunal and requested an adjournment until later in the day. This I refused and the Tribunal proceeded without the respondent treating his application for a review as his written representations, and his application was dismissed."
The comments go on to note that:
"At approximately 12.45 pm the appellant with another person appeared in the Tribunal reception and he was informed that the Tribunal had proceeded in his absence. He asked to see the Chairman and was refused.
...The appellants reason for disappearing to another Tribunal was that he was appearing to assist an applicant therein who had certain language difficulties."The Chairman commented that it seemed that the Appellant was requested to give assistance at another Tribunal after he knew of this date which had been fixed for some time for the Industrial Tribunal's review. The comments conclude by saying:
"... it is considered that the appellant has taken every step possible to avoid the matter being dealt with."
We have ourselves listened carefully to the account given by Mr Iqbal of what happened on this occasion, and we have also looked at the documents which are before us. From all of this what is quite clear and undisputed is that the Appellant knew about the date fixed for the Industrial Tribunal review hearing somewhere between 3 and 4 weeks beforehand. There is a letter on file dated 26th July 1994 which told the Appellant that the review hearing would take place on 23rd August 1994 at 9.45 am for 10.00 am, and the Appellant has acknowledged before us that he received that letter shortly after the date which it bears.The other proceedings which took place on 23rd August 1994 were some proceedings at a Social Security Appeal Tribunal to which the Appellant was not a party. His role therein was that both of an interpreter and an advocate on behalf of a colleague of his, a Mr Choudhry. The Social Security Appeal Tribunal proceedings had been adjourned from 6th July 1994. The Appellant does not know when it was that Mr Choudhry was informed as to the date for the adjourned hearing of the Social Security Appeal Tribunal, and no document before us indicates when Mr Choudhry was so informed, but in the normal course of events the view which we form is that it must have been some period of days if not weeks before hand. However, what happened was that the Appellant, according to what he has told us today, was only told on 22nd August, the day before, by Mr Choudhry that the Social Security Appeal Tribunal proceedings were about to resume the next day. It was for that reason that the clash between the two sets of proceedings arose.In those circumstances it seems clearly to us that it was the Appellant's duty to attend at the Industrial Tribunal review hearing at the stated time. If he wanted an adjournment of those proceedings, the right course for him to have adopted would have been to have put that matter to the Industrial Tribunal in person and to seek to persuade them, and if that adjournment was not granted then to present his case for a review in accordance with his written documentation. If that meant telling Mr Choudhry that he the Appellant could not act for him on 23rd August, so be it. It was in the circumstances which we have outlined Mr Choudhry's fault for not telling the Appellant of the date of the Social Security Appeal Tribunal earlier. The Appellant acknowledges before us in the course of argument, that the Industrial Tribunal review hearing deserved priority. That must be so, and it is something of which this Appellant must have been well aware, bearing in mind that he had already had experience at the original hearing of the Respondent's claim going ahead in his absence because he had not appeared. Whatever the rights and wrongs of the Appellant's non-appearance on that occasion, it must have served as a warning to him of the likely consequences if he was not present when the Industrial Tribunal sat afresh on 23rd August 1994.The Appellant has relied before us on the decision of Divisional Court in Priddle v Fisher & Sons [1968] 3 AER 506 . That too was a case concerning an industrial tribunal, where the appellant had arranged to be represented at the hearing by a trade union representative with whom he intended to travel to the hearing. However, unfortunately the union representative was unwell on the day of the hearing and unable to make the journey. The appellant himself set off on his own intending to conduct his own case but he was unable to complete the journey because of snow. He managed to get a message through to the tribunal telling the tribunal office that the trade union representative would not be appearing, and that he himself had problems getting there. He did not formally apply for an adjournment. The Divisional Court upset the decision of the industrial tribunal to proceed with the case in the absence of the appellant, because they said that the tribunal should have considered the telephone message as amounting to an application to adjourn, even though he had not asked expressly for an adjournment. The tribunal, it seems, had refused to adjourn because there had been no express request for an adjournment.We are bound to say that that case is wholly different from the facts of the case which is before us at the moment. The basis of the Industrial Tribunal's decision in the present case was not to refuse an adjournment because there had not been an express request for an adjournment. There was an express request for an adjournment in the present case which was refused on its merits. Moreover, in Priddle v Fisher it is quite clear that the failure to attend by the appellant arose from circumstances quite beyond his control which prevented his appearance. This Appellant in our judgment had a choice as to which of the two proceedings he attended, and he chose not to attend, the proceedings for which the date had been fixed for virtually four weeks beforehand for this hearing of his application for a review.In those circumstances we can find no reasonable explanation for the Appellant's non-appearance at the appropriate time when the Tribunal sat to hear his application for a review. As for the late request for an adjournment, that was considered and rejected by the Tribunal. The Tribunal in our judgment was entitled to take the view that the Appellant had not provided any proper basis for granting an adjournment. In any situation such as that, it is right that a Industrial Tribunal should take into account the interests of both parties, not just those of this Appellant, but the Respondents' as well, since they have an interest in not seeing the matter further delayed. The adjournment was refused in the proper exercise of the Industrial Tribunal's discretion, and the Tribunal properly dealt with this case in the absence of the Appellant.In those circumstances we can see no basis for intervening. Had we felt that the Industrial Tribunal had gone wrong in the exercise of its discretion, we would have considered the merits of the Appellant's case on the claims themselves, so as to satisfy ourselves that he had an arguable case on the merits. However, since we have determined that the Tribunal did not make any error of law in the exercise of its discretion, we do not need to proceed to consider the substantive merits of the Appellant's case on the claims brought against him, and for which an order for compensation had been made by the Industrial Tribunal. In those circumstances, we can find no basis for upsetting the Industrial Tribunal's decision and this appeal has to be dismissed.