En'Wezoh v London Forum Hotel Ltd [1999] UKEAT 1153_98_2603

EAT
En'Wezoh v London Forum Hotel Ltd
[1999] UKEAT 1153_98_2603 · 1999-03-05
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether the appellant in this case has an arguable point of law in an appeal which he wishes to make against the unanimous decision of an Employment Tribunal that his case should be dismissed.The background facts leading to this appeal are set out in the Employment Tribunal's decision. The extended reasons run to some five typescript pages and the document was sent to the parties on 6th August 1998.Essentially, the facts are these. The applicant had presented a complaint of unfair dismissal against his former employers, London Forum Hotel Ltd, and the case was set down for a three day hearing which was due to commence on 2nd February 1998. The 2nd February passed without any difficulty and on the morning of 3rd February the evidence was resumed but at lunchtime the applicant was given information that his three year old daughter had been taken to hospital. Not surprisingly, he left immediately to be with her and before 5 o'clock that afternoon sent a fax to the Employment Tribunal saying the he would be unable to attend the hearing on the following day due to sickness in his family:
"My daughter is seriously ill and needs all the attention she could get from me.
I regret any inconvenience this may cause to the other parties and the Tribunal."Accordingly, the applicant did not re-appear on 4th February.The tribunal considered the position and concluded:
"3 [ 4 ]... since it had no means of testing whether the Applicant's story about his daughter's illness was true or not or whether the correct position was that given to Mr Wignall it ought in order to do justice to the Applicant adjourn the case so that the Applicant could have an opportunity of explaining himself. The matter was accordingly adjourned. ..."
The applicant was requested by the tribunal, in the form of a direction, no later than 27th February to produce a letter from the Consultant treating his daughter confirming the date on which she was admitted to hospital and that her illness was serious enough to warrant the attendance of both her parents.The medical certificate which was provided by the applicant was a letter from the general practitioner saying that the child had attended his surgery on 3rd February and she was referred to a consultant ENT surgeon at King's College Hospital. She was suffering from recurrent tonsillitis. Both mother and daughter were treated with antibiotics and advised to rest at home.It seems reasonably clear that the tribunal had been under the apprehension that in the light of the facts the applicant's daughter was being treated in hospital, whereas in fact, she had been discharged from casualty, as we understand it, and had been put back into the care of her general practitioner who had prescribed antibiotics and rest. There is another member of the applicant's family, a 13 month old baby, at that time, and they had no help in the house.In the light of the document that was provided, the tribunal reconvened on 14th July, when the applicant attended, and the tribunal said this:
"5 [ 6 ] ... He [ the applicant ] said that his daughter had been taken to casualty but agreed that she had never been admitted to hospital but had been referred back to his General Practitioner. The Respondents said that they did not object to the case continuing subject to the question of costs but that the Tribunal should consider the medical evidence produced. ..."
The tribunal's conclusion:
"... was that the applicant had not complied with the Tribunal's direction for the production of some evidence which would show that his daughter had been admitted to hospital as an emergency and that the attendance of both her parents was necessary. The Tribunal considered that the applicant had acted in total disregard of the Tribunal's directions and had failed as the hearing on 14 July to produce any evidence to show why he could not attend on 4 February, the third day of the hearing. Having regard to this the unanimous conclusion of the Tribunal was that the Applicant's claim should be dismissed because of his failure to attend on the third day of the hearing in February and to give evidence. Accordingly the unanimous decision of the Tribunal is that for this reason the claim should be dismissed."
Against that decision the appellant, would wish to appeal. We have been persuaded that this is a case which should proceed to a full hearing without in any way indicating to the appellant that his appeal will ultimately succeed. What is said is that the whole approach of the tribunal leaves a lot to be desired. They appear to have embarked on the exercise in the belief and expectation that the appellant had in some way been misleading them. They appeared to be under the impression that because the daughter had not been admitted into hospital but rather had been ordered to rest at home with the mother, he had not, on that account, provided an excuse for not appearing on the Wednesday. Whether he was able through family emergency to attend was a matter which, it is submitted, should have been carefully investigated by the Employment Tribunal, including the question as to his parental responsibilities in relation to the child which was not ill, having regard to the fact that both his older daughter and his wife were on antibiotics.There are allegations in the affidavit which has been sworn in this case by the appellant which also require to be looked at, together with the Chairman's comment in relation to it. There will be a question which the Employment Appeal Tribunal may wish to consider as to the way in which those comments have been made and whether they deal with the questions at issue.Accordingly, we feel that justice requires that the appellant's complaint should be carefully investigated at an inter partes hearing and, subject to the caution which I have mentioned, this case should be allowed to proceed. It is a Category C case, but I would wish it to be dealt with by His Honour Judge Peter Clark if he is available. I estimate that it will last for no longer than 1½ hours.