Joseph v Carphone Warehouse [1999] UKEAT 1113_98_2405

EAT
Joseph v Carphone Warehouse
[1999] UKEAT 1113_98_2405 · 1999-05-24

JUDGE PETER CLARK :

The appellant commenced these proceedings by an Originating Application presented to the London (North) Employment Tribunal on 12th February 1997. She complained of racial discrimination and unequal pay against the respondent, the Carphone Warehouse, with whom she commenced employment as a Marketing Assistant on 8th January 1996. The claims were resisted.The matter came on for hearing before an Employment Tribunal chaired by Mrs J Hill on 7th July 1998. On that occasion the appellant was represented by Ms D Knight, a solicitor of D J Harry & Co, Solicitors of Rye Lane, Peckham, London SE15 ["the solicitors"].The appellant did not attend. On 2nd July her solicitors had sought an adjournment on the basis that the appellant was too ill to attend. No proper medical certificate was enclosed with that application.The Duty Chairman was not prepared to grant an adjournment without a proper medical certificate identifying the nature of the appellant's illness. The appellant's representative was asked to obtain a certificate. The respondent wrote objecting to an adjournment.On 7th July Ms Knight renewed her application for an adjournment. She said that the appellant was too ill to obtain a medical certificate. The respondent repeated their opposition to the application.The tribunal refused the adjournment request. In the absence of any evidence called by or on behalf of the appellant it dismissed the complaint and ordered the appellant to pay £100 costs to the respondent.Against that decision, promulgated with extended reasons on 13th July 1998, the appellant appealed by a Notice dated 13th August 1998, attached to which are grounds of appeal settled by Mr Fred Edward Jnr.The appeal was listed for preliminary hearing on 2nd March 1999 before a division of the EAT presided over by Holland J. There was appearance by or on behalf of the appellant. Instead the solicitors sent a fax transmission dated 2nd March to the EAT in which they said this:
"We write to confirm that we are instructed by the Applicant in this matter.
The person who had conduct of this case has since left the employment of this firm and therefore did not instruct Counsel to appear today.We shall be obliged if you will vacate today's hearing and grant us a further 28 days within which to review our file, instruct Counsel and take our client's further instructions.Kindly also convey our apologies to the Tribunal for the inconvenience of today.

We look forward to hearing from you in due course."

The EAT allowed the adjournment on the following terms contained in their Order of that date:
"THE TRIBUNAL ORDERS that the Appeal be adjourned to be re-listed for a preliminary hearing unless within 28 days of the date of this Order the Appellant confirms withdrawal of the Appeal further applications for adjournment will not be considered."
Notice of the new date of hearing, fixed for today, 24th May, was sent to the appellant on 5th March 1999. She replied on 22nd March 1999, indicating that she would not attend, but would be represented by her solicitor.Today, there was again no appearance on behalf of the appellant. A telephone enquiry of the solicitors evoked this response, again by fax from them:

" RE: REQUEST FOR ADJOURNMENT

We refer to the above matter and our telephone conversation this morning regarding the same.We sincerely apologise for the inconvenience our absence must have caused the court this morning. The fee earner in charge of the matter is in attendance in a different court and is therefore unable to provide a full explanation.Kindly adjourn this matter to a future date to enable me to look into the matter and possibly provide representation as may be required."That is wholly unacceptable. The appellant was warned on the last occasion that no further adjournment would be granted. She appears to have placed the matter in the hands of the solicitors whose conduct seems to us to fall well short of proper professional standards. The application is refused.Having considered the written grounds of appeal, we have concluded that this appeal raises no arguable point of law and it will be dismissed. The first ground of appeal is a complaint that the Employment Tribunal ought to have adjourned the hearing in the light of the appellant's certificated illness. It was not certificated, either on 2nd or 7th July. Interestingly, there is before us a medical certificate initialled by, we assume, Dr G R Ahmoye and dated 7th July. A copy was faxed to the EAT by the solicitors together with Ms Knight's affidavit on 2nd November 1998. Plainly the appellant was not so ill that she was incapable of obtaining a medical certificate between 2nd - 7th July, as the Duty Chairman had directed. Secondly, there is a complaint that Ms Knight was not given an opportunity to cross-examine the respondent's witnesses. However, there was no evidence called by or on behalf of the appellant. There was literally no case for the respondent to answer by evidence. The tribunal considered the pleadings before dismissing the complaint. The further grounds relate to the form of a medical certificate and the tribunal's costs order. We see nothing in those grounds as a matter of law.The appeal is dismissed.