BELLAGO ENTERPRISES LTD T/A DOMINO'S PIZZA v MR C BAGGOTT & MR J MCDOUGAL [1999] UKEAT 961_98_0107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 961_98_0107Case No Appeal No. EAT/961/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BELLAGO ENTERPRISES LTD T/A DOMINO'S PIZZAAPPELLANTMR C BAGGOTT & MR J MCDOUGALRESPONDENT
Before
His Honour Judge H Wilson Mr D Chadwick Mr R SandersonDate 1 July 1999
[1]APPEARANCES For the Appellants MR M WEST (Representative) Peninsula Business Services Ltd Advocacy & Litigation Dept Stamford House, 361-365 Chapel Street Salford Manchester M3 5JY For the Respondents MR H FORREST (Solicitor) Humberside Law Centre 95 Alfred Gelder Street Hull HU1 1EP JUDGE WILSON: This has been the hearing of full argument in the appeal brought by the original First Respondent, who was granted leave at the preliminary hearing to bring forward one matter, namely whether in exercising their discretion to proceed with the hearing in the absence of a witness, that decision of the Employment Tribunal was so perverse as to amount to an error of law. We have benefited from the Skeleton Arguments presented by Mr West on behalf of the Appellant and by Mr Forrest on behalf of the Respondents. We have also had the opportunity to read all the papers in the case, including the applications themselves and the Notices of Appearance by the Appellants and by Sarah Scott-Lundy, who was at that stage named a Respondent. There is also a full decision with Extended Reasons, which run several pages of typescript, which has been of assistance to us too.[2]The appeal concerns the decision of the Employment Tribunal to proceed with the hearing in the absence of the witness, who at that stage was the Second Respondent, Sarah Scott-Lundy. There had been an application for a postponement before the hearing. There had been correspondence before the hearing and a Chairman had agreed that in consequence of the Second Respondent's attending the funeral of her grandmother on Thursday 21 May 1998, the proceedings would not commence on that date but on 22 May 1998. There was a further written application to postpone the proceedings from that date, but that application was refused in writing on 20 May 1998.[3]When the Tribunal convened on 22 May 1998, Mr Searle, at that time representing the Respondents, made an application for a further postponement and produced a certificate from a doctor, referring to the Second Respondent's having attended her grandmother's funeral, and saying that she believed it would be too emotionally upsetting for her to attend the Tribunal tomorrow. The adjournment request was opposed by Mr Forrest on behalf of the Applicants, who pointed out that it did not indicate that the Second Respondent was too unwell to attend. The Tribunal, as they made plain in paragraph 4, found that there was no sufficient reason for the Second Respondent not to attend that day. But they did not proceed forthwith, having discovered that the lady was only half an hour away. They adjourned in order to give Mr Searle the opportunity to get in touch with her and ask her to come.[4]When the Tribunal reconvened, Mr Searle indicated that he had spoken to the Second Respondent and that she was not willing, or able to attend. Accordingly, the hearing proceeded in her absence. That hearing began by the Tribunal taking into account, as it was bound to do under the rules, the Notices of Appearance in some detail. We have done the same thing and there is a particularly full Notice of Appearance from the missing witness. There is also quite an adequate one on behalf of the Company itself.[5]The first thing the Tribunal decided, having heard the evidence from the Applicants cross-examined by Mr Searle, was that the witness in question was, in fact, not a principal but an employee, and dismissed her from the proceedings. They then went on to find that each of the Applicants had been unfairly dismissed and made awards accordingly.[6]The rule with which they had been concerned, and with which we are concerned, is rule 9(3) of the Industrial Tribunal Rules, which is found at schedule 2 of the Industrial Tribunal Regulations 1993. The rule in question provides that:
"If a party fails to attend or to be represented at a time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance. any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal, pursuant to rule 4(3)."
[7]We have to consider whether that rule was properly applied and we find that it was. The contrary is urged upon us by Mr West who relies on the unreported decisions of the Employment Appeal Tribunal in the case of Girlett which was decided on 9 September 1981 and the case of Ring & Brymer which was decided on 28 January 1993. In the latter case, we find that it was concerned with a completely different point. The missing witness in that case was a liquidator, who alone, could give evidence about the true reason for dismissal. He had been made the subject of a witness order and other steps had been taken to ensure his attendance. In the case of Girlett , the former case, she was present and when given the opportunity to give her own evidence, refused.[8]It seems to us in any event that both those cases are subordinate to the decision of the Court of Appeal in Jeneba Deen-Koroma v Immigration Appeal Tribunal which appears to us to be completely in point with this case. The facts there were that a medical certificate was presented to an adjudicator at the beginning of the hearing. It had been produced on the morning and, so far as it was legible, it revealed no reason why the Applicant could not attend the Court. In that case, the Representative was also absent. In this case of course, Mr Searle was present, but the medical certificate was presented as late. As in Jeneba , it failed to disclose any acceptable reason why the Applicant could not attend Court. Saville LJ gave the judgment in the Court of Appeal and he said that the short question was whether or not the decision of the special adjudicator refusing an adjournment was so unfair that it was one that no special adjudicator properly applying himself to his task could have reached. That is under the Immigration Appeal Procedure Rules which are very similar, in form and content, to the rules with which we are concerned, and we adopt that test.[9]Having asked ourselves, in all the circumstances of this case, whether or not the decision of the Employment Tribunal to refuse an adjournment was so unfair that it was one which no Tribunal properly applying itself to its task could have reached, we find that it was not. Echoing what Saville LJ said, it may be perhaps described as a tough decision, but we too are unable to subscribe to the proposition that it is a decision which no Employment Tribunal, properly applying itself, could have reached. Accordingly, this appeal must be dismissed.