Nagendran v Aves [1997] UKEAT 209_97_2904

EAT
Nagendran v Aves
[1997] UKEAT 209_97_2904 · 1997-04-29

JUDGE LEVY QC:

Mr Nagendran wishes to appeal against a decision of an Industrial Tribunal sitting at London (North) on 5 December 1996. On that date the unanimous decision of the Tribunal was that Mrs Aves was unfairly dismissed and it ordered compensation to her. Mrs Aves had made a complaint by an Originating Application, received by the Industrial Tribunal on 10 August 1996, complaining of unfair dismissal without pay by her employer Mr Nagendran. She was a Montesorri teacher and she claimed that her employment was from January 1993 to August 2 1996.The Notice of Appearance entered by Mr Nagendran said the reason for dismissal was that she was made redundant following a drop in numbers of children and withdrawal of the Montesorri method of teaching.Unhappily on the date of the hearing Mr Nagendran did not attend. His reasons for not attending are set out in an amended Notice of Appeal, which Mr Miller of Counsel, who has appeared for Mr Nagendran today, wishes to put before the Tribunal. Although there has been no leave to amend the Notice of Appeal, we have considered all that is said in that Notice of Appeal. The facts appear to have been that on the day of the hearing Mr Nagendran had made an error in his diary and failed to attend at the Tribunal. However, fortuitously, he had telephoned ACAS that day and found out the date of the hearing. He was in contact with the court, but chose not to attend, because he had what he considered to be a more important appointment elsewhere. The Tribunal heard the case only on the evidence of the Applicant in those circumstances and reached the decision it did. On the face of the decision, it was one which the Tribunal was perfectly entitled to reach.Mr Nagendran, as was his right, sought a review of the decision and he said this on his application for review:
"I now write to request a review of the Tribunal's decision for the reasons listed below:
a) The decision was wrongly made as a result of an error on the part of the tribunal staff.b) The decision was made in the absence of a party.c) 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 or foreseen at the time of hearing and

d) The interests of justice require such a review."

and he sent the Tribunal certain documents. The review was heard by a Chairman alone, which in our judgement is perfectly proper. The reason for refusing the review were thus expressed:
"2 The reason given by the Respondent for the dismissal was redundancy and the Tribunal considered the matter on that basis. It is not open to the Respondent to seek to reopen the matter on the basis that the reasons now be extended to include conduct and capability. The decision was reached on the basis of the information before the Tribunal on the day including that provided by the Respondent.
3 The Respondent did not complete the question in the Notice of Appearance which asked for the Applicant's dates of employment. [The Applicant chose to raise out of time the dates of employment.]4 The Respondent did not attend the hearing because he said he had got the dates mixed. His application for a postponement was turned down but he showed no interest in attending although he did not live far away. The Clerk spoke to him on an 0181 number. She did not ring Luton. Her file note states that he said that he had that morning telephoned Richard O'Shea of ACAS about an out of court settlement. To succeed under this head the party claiming must show that he has a good and genuine reason for his absence.5 While the Respondent makes new allegations against the character and disposition of the Applicant the Tribunal was impressed that three parties had attended before the Tribunal to attest to her many virtues. She appeared to be a mild mannered woman.6 With regard to the alleged new evidence of means we found that the Applicant had been in receipt of benefit and a recoupment order was accordingly made.7 Having regard to the interests of justice I am exercising my discretion having regard to not only to the interests of the Respondent but the Applicant too and to the public interest requirement that there be a finality of litigation."In our judgement, an applicant to an Industrial Tribunal is entitled to a day in court and so is the respondent. If a respondent fails to attend without good reason, then he bears the risks of not attending and the consequences of not attending. In this case, it seems to us, that there were risks which the Respondent, albeit that he was in person, must have appreciated by not attending on that day and he brought upon himself what happened. In our judgement the decision of the Tribunal was one which it was entitled to reach on the evidence and the decision of the Chairman on the review was a perfectly proper one in the circumstances.We have taken account of all that Mr Miller has said to us both orally and in the amended Notice of Appeal, but in our judgement this matter has no hope of success if it goes ahead and accordingly we dismiss it at this stage.