Metcalfe v Compair Reavell Ltd [1998] UKEAT 376_98_0105

EAT
Metcalfe v Compair Reavell Ltd
[1998] UKEAT 376_98_0105 · 1998-05-01
MR JUSTICE LINDSAY : In this matter we have before us, as a preliminary hearing, a hearing of the appeal by Mr R Metcalfe from a decision of the Industrial Tribunal at Bury St Edmunds under the Chairmanship of Mr D R Crone where the hearing had been on 13th January 1998 and the decision was promulgated on 16th January 1998.On 13th June 1997 Mr Metcalfe lodged an IT1 complaining of unfair dismissal (constructive dismissal). The employer company, Compair Reavell Ltd, responded with an IT3 on 4th July 1997. These are virtually the only material in the case which is before us and from those papers the following appears.Firstly, Mr Metcalfe was employed by the respondent on 6th September 1993. His standard terms and conditions included reference to and were subject to collective agreements from time to time made between the relevant union and the employer and applicable in his case.On and from 18th March 1997, by way of a negotiation with the Amalgamated Engineering and Electrical Union, new collective terms were applied which included assessments of the capability and training needs of relevant employees, of whom Mr Metcalfe was one.On 25th March 1997 Mr Metcalfe was accordingly asked by the company, in the light of that new collective agreement, to agree to his being assessed. However, he refused, seemingly on the basis that his initial contract made no provision for his assessment. Moreover, he thought that it would be to his detriment and was unnecessary, given that he had by then worked for the company for almost four years. However, the company took the view that his refusal was a breach of the collective agreement and hence a breach of his own contract of employment and accepted his action as being a termination with effect from 26th March 1997. As mentioned earlier, on 13th June 1997 he lodged his IT1.Thereafter the following procedural history developed:On 8th August 1997 there was a hearing in front of the Industrial Tribunal and Mr Metcalfe raised fresh issues which the respondent claimed took it by surprise. The Industrial Tribunal appears to have accepted that that was the case. The case was therefore adjourned to 15th August 1997.Mr Metcalfe has completed his evidence, which presumably included evidence of whatever grounds took the respondent by surprise, but, plainly, cross-examination of those fresh issues was a thing that was contemplated as a possible further step required to be taken in the proceedings.The 15th August 1998 hearing was postponed and was re-listed for 5th September 1997.Before that came on, on 23rd August 1997 Mr Metcalfe wrote to the Industrial Tribunal saying that he had a new job and was unable "to attend any more Tribunal meetings".On 4th September the respondent company happened to be before the Industrial Tribunal on another matter and it was told of this new development.On 5th September 1997, the re-listed date, the Industrial Tribunal thought it proper to give Mr Metcalfe a further opportunity to proceed in full with his case if he wished to do so and decided to do so. Accordingly, 25th September 1997 its decision of 5th September was promulgated and its decision was as follows:
"The unanimous decision of the Tribunal is that the Hearing is adjourned.
The Applicant is directed to show cause in writing within 7 days why the application should not be struck out, but may within the same time apply for a further listing of the case if he wishes to proceed."The Industrial Tribunal said at paragraph 6 of their extended reasons:
"6. The Tribunal have considered the matter and have decided that it is only fair to the Applicant to give him a further and final opportunity to be heard in the matter, if he wished his case to proceed. Accordingly, he is directed to write to the Tribunal within 7 days to indicate whether or not he intends the matter to proceed, if he does intend to proceed whether or not he intends to come to any further Hearings and if he does not intend to come to any further Hearing, what further matters he wishes to draw to the attention of the Tribunal in connection with his case. He is warned that this is a notice show cause why his application should not be dismissed for want of prosecution and notwithstanding anything he may submit, it may still be that the case will be dismissed in this way. However, if the Applicant wishes to have a further Hearing which he can attend, he must within the same time apply to the Tribunal Office for the matter to be re-listed for this purposes."
Unfortunately, however, notwithstanding the promulgation of that decision and its full explanation, nothing whatsoever was heard from Mr Metcalfe.So, on 13th January 1998, the matter was before the Industrial Tribunal and it decided as follows:
"The unanimous decision of the Tribunal is that in the absence of any further response the application is struck out for want of prosecution.

REPRESENTATION

For the applicant: Not present or represented

For the respondent: Not present or represented."

That decision of 13th January, promulgated on 16th January 1998, is, so far as we can understand the papers, the only decision which is appealed against.On 2nd February 1998 a Notice of Appeal was received by the Employment Appeal Tribunal. Under the heading 6 which says:
"The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that ( here set out in paragraphs the various grounds of appeal ):-"
Mr Metcalfe has completed the grounds in a way, that we think, suggests this:
" I won them to cum to a desessha en mie vafor [ I want them to come to a decision in my favour]. "
We certainly do not make fun of Mr Metcalfe's literacy, he obviously has considerable difficulty with language or spelling, but that is all that he says as the ground upon which the appeal should proceed - "I want them to come to a decision in my favour".The ground being so stated, the Registrar of the Employment Appeal Tribunal on 9th February 1998 wrote to Mr Metcalfe saying, amongst other things, this:
"I have considered your Notice of Appeal as drafted and its appears to me that it does not raise a point of law and therefore has very little chance of success.
If you still wish to proceed with your appeal please reply to this letter giving your reasons why you are dissatisfied with my decision, submitting a fresh notice of appeal if necessary. ...If, however, I do not have a reply from you within 28 days of the date of this letter I shall take the absence of any such request as a consent to the withdrawal of your appeal."Within the time Mr Metcalfe did write to the Registrar. Again, there is every indication in his letter that Mr Metcalfe has considerable difficulty with literacy and orthography, but I do not think that there is anything to be gained by quoting his letter.He has been offered the services of ELAAS, but he says that he cannot afford to attend the hearing and he wishes it to be dealt with in his absence and no attendance today is made on his behalf.The Employment Appeal Tribunal is very conscious that even the simplest appeal represents an expense to appellants or can represent an expense to appellants and that in some cases even the simplest appeal represents a real difficulty to the individuals concerned. But Mr Metcalfe did attend the case whilst it was running in his favour, as it seemed; he gave evidence on 15th August 1997 and he cannot simply decline to attend the rest of the case when his presence may well be necessary for full investigation of the issues because his cross-examination may well be a necessary or desirable part of the further prosecution of the case. We cannot say that the Industrial Tribunal was wrong to put him on terms as it did by its order of 5th September, promulgated on 25th September 1997. Mr Metcalfe would not have incurred any significant expense and perhaps no difficulty in complying with the seven day deadline that was then imposed upon him. So it was that on 13th January 1998 the Industrial Tribunal was faced with a case where there had been an unexplained failure to attend on the part of someone whose attendance might well be necessary for the proper conduct of the case and who had been required "to show cause".We cannot say that the Industrial Tribunal's decision to strike him out was wrong in law. We detect no arguable point of law that Mr Metcalfe could raise which would have any prospect whatsoever of success. Accordingly, without allowing this matter to go to full hearing, we dismiss the appeal.