MR J W THOMAS v CITY & COUNTY OF SWANSEA [2000] UKEAT 1255_99_3003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1255_99_3003Case No Appeal No. EAT/1255/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J W THOMASAPPELLANTCITY & COUNTY OF SWANSEARESPONDENT
Before
Mr Justice LindsayDate 30 March 2000
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Mr J.W. Thomas in the matter Thomas against the City and County of Swansea. We have a note from Mr Thomas that says he is unable to attend today. That was signed some time ago but, as a precaution, to be sure that he is not in the building, we have had him called and it transpires that there is no response to the call. There is a rather involved procedural history here which needs to be set out. On 10 December 1998 Mr Thomas lodged an IT1 claiming constructive dismissal as at 30 September 1998. On 5 January 1999 the Respondents, City and County of Swansea, put in their IT3. They said:
"The Applicant did not turn up for work on the 28 th September 1998 and failed to notify the Leisure Centre of the reason for his unauthorised absence. A letter was sent to him on the 6 th October 1998 informing him that unless he contacted the Leisure Centre by the 9 th October 1998 to notify the Leisure Centre of his intentions, the Respondent would conclude that he had terminated his employment. The Applicant failed to contact the Respondent until the 26 th October 1998 some 20 days later. A letter was sent to him on the 4 th November 1998 notifying him that the Respondent had concluded that the Applicant had terminated his contract of employment and was no longer an employee as he had failed to contact the Respondent by the 9 th October 1998 as requested."
[2]It might be thought that where the employer's line of defence is shown to be that the Applicant without good reason had failed to attend, that the Applicant would be enthusiastic to show thereafter that he did in fact attend, by, in this case attending the Employment Tribunal in a punctual fashion, at all events unless there was demonstrably good reason for not doing so. That is how the matter began.[3]On 22 February 1999 Mr Thomas asked that certain dates for the main Tribunal hearing should be avoided. On 4 March 1999 Notice of Hearing was given for 22 and 23 April 1999. Those dates were not on his list of dates to be avoided; in other words, they were apparently dates that he could do. In the ordinary way the Notice of Hearing had this written on it:
"Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds and any other unavailable dates in the six weeks following the above hearing date."
[4]On 7 April 1999 Mr Thomas asked for a postponement until after 1 July. On 13 April 1999 he was told that the matter could not be put off until July, but there was an invitation to him to settle upon some earlier date.[5]On 14 April Mr Thomas said that he could do dates between 4 June and 18 June 1999. On 16 April the Chairman indicated that a postponement was granted and on 5 May 1999 a Notice of Hearing was given for two days of the hearing, 7 and 8 June 1999. Again, the Notice of Hearing had the paragraph beginning "Unless there are wholly exceptional circumstances" and so on (which I have read from the earlier Notice of Hearing).[6]On 7 June 1999, the first of the two days fixed for the hearing, Mr Thomas did not attend. On 7 June, the same day, the Respondent, Swansea, wrote to the Tribunal as follows:
"I refer to the above matter which was postponed as the Applicant was allegedly unable to attend as a result of an asthmatic attack. The Authority has ascertained that the Applicant was in fact well enough to attend work today to carry out a shift at 3 pm. In the circumstances, please note that it is our intention to make an application for costs incurred today under the Industrial Tribunals (Constitution and Rules of Procedure) Regulations, rule 12(4) as a result of attending the Tribunal and this application will be made at the next hearing."
On 9 June 1999 the Tribunal wrote to Mr Thomas. They said:
"The case will be re-listed for hearing in due course. However, it has subsequently been directed that you provide a medical certificate for your absence on 7 June 1999."
The Tribunal sent him a copy of Swansea's letter saying:
"Your doctor should be told that you attended work on 7 June (if you did so) and say whether this is consistent with your failure to attend the tribunal. Please note that the tribunal has power to dismiss the originating application if it is not satisfied by the explanation given."
[7]It is not directly clear from the papers, but it seems that on 12 June Mr Thomas acknowledged a fresh Notice of Hearing for 28 July. On 28 July there was a fresh hearing. Mr Thomas did not attend. On 5 August the Chairman, Mr P. Webster, who had sat on 28 July with Mr Dickenson and Mr Screen, sent the decision to the parties. The unanimous decision of the Tribunal was that the application was dismissed pursuant to Rule 9 (3) and the Tribunal ordered the Applicant, Mr Thomas, to pay £350 towards the Respondents' costs pursuant to Rules 12 (1) (a) and 12 (3) (a). The decision is headed first "Decision" and under the next paragraph "Reasons". It did not, at that point, indicate in terms whether they were Extended Reasons or Summary Reasons; it just says "Reasons". In paragraph 1 they say:
"1 The case was listed for two days. It is a constructive dismissal claim and accordingly the onus is upon the applicant. He is not present and earlier this morning a message was received from a lady claiming to be his girlfriend stating that 'the applicant will not be attending today's hearing because he has to go to the surgery because he is feeling unwell. He has difficulty in breathing and has problems with muscles in his chest'. The lady was asked whether the applicant would be able to attend tomorrow and she said it all depended on what the doctor said. The lady was asked for her telephone number in order that we could contact her but was not willing to give her telephone number. She said that the applicant is not on the telephone."
The Tribunal in their paragraph 2 continued:
"2 There is a history to the case. It was listed for a two day hearing for 7 and 8 June and on that occasion at 9.35 am on the morning of the first day, 'Ms Beynon rang to say that Mr John Thomas had suffered a severe asthma attack and would not be able to attend today's Tribunal'. In those circumstances the Tribunal adjourned the hearing. Later that day the respondents obtained information which they say showed that the applicant had attended work at 3.00 pm on 7 June. They sent us a fax message to that effect on 7 June and have today produced a letter from the University of Wales, Swansea, dated 16 June stating 'I can confirm that Mr John Thomas who is employed as a part-time Sports Centre Attendant was present in work on Monday, 7 June 1999 providing shift cover from 3.00 pm to 6.00 pm'. It is signed by the Director of Physical Education. The respondents' fax intimated their intention to apply for costs of the June hearing in the circumstances. We copied that fax to the applicant on 9 June with a letter stating 'Your doctor should be told that you attended work on 7 June (if you did so) and say whether this is consistent with your failure to attend the Tribunal. Please note that the Tribunal has the power to dismiss the Originating Application if it is not satisfied by the explanation given'."
And then in their paragraph 4, speaking of the position as it was at that time on 28 July:
"4 No medical certificate has been received. The lady who telephoned today was asked about this and replied that, because he received the Notice of Hearing so soon after he received the letter stating that a medical certificate was required, he took it that he no longer needed to supply the certificate. We find that a completely unsatisfactory explanation or excuse for not sending in the certificate."
The Tribunal then turned to the matter and said this:
"5 We are satisfied that, if the applicant has not acted 'frivolously' or 'vexatiously', as to which we make no judgment, he has most certainly acted 'otherwise unreasonably' in his conduct of these proceedings both by not attending on 7 June and, again, today, and by leaving it until almost the last minute and certainly until the day of the hearing to intimate that he would not be attending because of ill-health. That in our view is unreasonable behaviour. We draw the inference from the fact that he, we find, was employed at the college from 3.00 to 6.00 pm on 7 June, that there was no reason why he could not have attended on 7 June, and indeed on 8 June. We infer that the same situation applies today, and that he could attend if he had wanted to. 6 The outcome is that three and possibly four Tribunal days have been wasted causing public expense and postponing the availability of those days to hear the claims by other people who are ready, willing and eager to have their cases heard."
So far as concerned costs they said this:
"We have made such enquiries as we are able into the applicant's means. Although, since this is not a deposit case, we have no duty to do so, common justice indicates that we should do what we can. He earns about £65 a week with the University of Wales, Swansea, and he resides, it is believed, in a council house. He has been doing a degree in mathematics, as correspondence on the file indicates, but the term is now finished and, all-in-all, we feel that there should be no difficulty in his meeting an award of costs of £350, which we break down into £100 in respect of 7 June, plus £250 in respect of today's hearing."
It would be as well to read the relevant rules. Rule 9 (3) says this:
"(3) If a party fails to attend or to be represented at the 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)."
In exercise of that rule the Tribunal said this in their final paragraph, paragraph 7:
"7 We have acceded to the application to dismiss the case in the applicant's absence using our power under Rule 9 (3). Before dismissing the case we have treated the Originating Application and the letters written by the applicant as representations in writing. We are satisfied that this is a proper case to dismiss, if only because the applicant has not attended to present evidence to surmount the burden which lies upon him. We dismiss it in his absence. The leaflet which accompanies this Decision will inform him of his right to apply for a review if there was any valid reason for his non-attendance at the Tribunal."
[8]That was the decision sent to the parties on 5 August 1999. On 9 August 1999 there was a letter of complaint from Mr Thomas to the Employment Tribunal and on 9 August also a Notice of Appeal. On 17 September 1999, in response to the letter of complaint addressed to the Employment Tribunal, the Employment Tribunal wrote as follows:
"The Chairman has asked me to say that the reasons promulgated on 5 August 1999 are in extended form."
And that took up the point, that Mr Thomas had spotted, that the reasons did not say that they were summary and did not say that they were extended. Here the Chairman has caused the omission to be made good. It was intended that they were in extended form. The letter of 17 September went on:
"You should consider asking this Tribunal to treat your letter dated 9 August 1999 as an application to the Tribunal for a review, ie for this Tribunal to review its Decision in addition to being a notification of your intention to appeal to the Employment Appeal Tribunal."
In other words, they were referring back to the failure to attend and in effect saying that if there had have been good reason for Mr Thomas not attending on 28 July 1999, he was invited to ask for a review. This letter was reminding him of that ability, but he never did, in fact, ask for a review of the decision.[9]On 27 October 1999 the Tribunal sent to the EAT two doctors' certificates dated respectively, 28 July 1999 and 10 August 1999. It may be noted that there is no certificate to cover non-attendance on 7 June or 8 June. The one for 10 August 1999 seems to be irrelevant because what was material was the ability to attend or not on 28 July 1999. The one that purported to speak of 28 July 1999 is some way from conclusive. It is headed "Original with Employer" so it is merely a copy; that in itself does not bar it from having weight attached to it but it was not supplied in time for the hearing on 28 July. It has a completely indecipherable signature as the doctor's signature. It has no stamp on it although there is a common practice under which doctors' practices have rubber stamps indicating the name and address of the practice from which the certificate emanates, and it is rather unhelpful in the sense that says "I examined you today and advised you that" and then neither part is deleted:(a) says "You need not refrain from work" and(b) says "You should refrain from work", but the form continues "or until 2 August 1999" and, under the heading "Diagnosis of your disorder causing absence from work, Doctor's remarks", it has "Chest" and then some part or whole of a word is crossed out and the word "infection". It would hardly have been a compelling document, even had it been supplied in time.[10]Turning to the Notice of Appeal, Mr Thomas says (and this is paragraph 9 of his Notice):
"9. On 7/6/99 I suffered an asthma attack, just before I was due to travel to the Tribunal. I am a long-term asthmatic, though I have had no symptoms since September 1998, on leaving my employment with the Respondent. This attack was severe and I was incapable, at that time, to travel. I took medication which I have for such a problem. My girlfriend telephoned the Tribunal to inform them of my inability to attend. She left a contact number. No mention was made of a medical certificate being required. No one phoned back. Later that morning my asthma symptoms had cleared. I phoned the Tribunal. I apologised for my earlier absence and explained that I was able to attend immediately or the following day, if necessary. I was told that the case had been postponed and I would receive a further notice of hearing for a later date, probably at least a month later. My immediate attendance was not needed. No mention was made of a medical certificate or visit to any health centre."
A little later he says:
" Several days later I received a request from the Tribunal that I obtain a medical certificate. This was not possible. I could not ask for a post-dated medical opinion for an illness which had cleared up. In fact I am provided with medication to treat the problem without need to visit my Doctor and take up his time."
And then finally, the quotation that we need to put before ourselves:
"10. On 28/7/99 I became ill during the night. My breathing was difficult due to either a rib or chest problem. Again, my girlfriend phoned the Tribunal and informed of my inability to attend. Meanwhile I went to a Doctor. Later that morning I phoned the Tribunal and explained I was not able to attend, at all, and that I had a medical certificate to cover the period 28/7/99 to 2/8/99,"
[11]The Chairman's comments were asked for and he does make comments, but he does not comment on any paragraph later than paragraph 8 of the Notice of Appeal, so those quotations from paragraphs 9 and 10 were not in fact commented upon by the Chairman.[12]How does that leave us? We have not have any assistance from Mr Thomas today. He has not attended and we have no reason to believe that he is unable to attend on medical grounds. He has just, as it would seem, chosen not to attend. We certainly have no explanation of why he is not here.[13]The Tribunal under the rules had a broad discretion under Rule 9 (3), as we have mentioned. So long as they considered the Originating Application and the other matters mentioned in Rule 9 (3), they were able, in point of law, to dismiss the application in front of them. If only Mr Thomas had furnished earlier that which he now furnishes in paragraphs 9 and 10, which we have quoted from, the case might have gone differently, but the Tribunal has to rule upon the matter in the light of such material as is laid in front of them on the day and it is a very broad discretion. Mr Thomas, had he attended, would have had to point to some error of law in the approach of the Tribunal and where the discretion is so unfettered and so broad it is, of course, difficult to point to an error of law.[14]We have not been able to discern any error of law. It is completely irrelevant whether we would have done as the Tribunal did. Unless Mr Thomas can find, or we can find on his behalf, some error of law, we cannot overturn the decision which the Tribunal came to. So also, as to the provision for costs; again the discretion is a very broad one and again, absent some error of law being found on Mr Thomas's behalf, the discretion cannot be set aside.[15]We have set out the full history of the matter. We have not been assisted by Mr Thomas today but, doing the best we can to find an error of law within the decisions of the Tribunal, we have been unable to find one. Accordingly, even at this stage, when we are looking only for an arguable point of law, we have been unable to find one and accordingly must dismiss the appeal even at this preliminary stage.