AREA GENERAL CLEANING v MRS S R LYWARD [2000] UKEAT 1436_99_1011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1436_99_1011Case No Appeal No. EAT/1436/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AREA GENERAL CLEANINGAPPELLANTMRS S R LYWARDRESPONDENT
Before
Sir Christopher BellamyDate 10 November 2000
[1]APPEARANCES For the Appellants MRS J BANGS (Representative) Area General Cleaning 13 Bellingham Trading Estate London SE6 3BX For the Respondent MR C McCONNELL (of Counsel) Instructed By: Martin Owens 'Timbers' Station Road Edenbridge Kent TN8 5NB SIR CHRISTOPHER BELLAMY QC: In accordance with the Order of 25 January 2000 made by our colleagues at the Ex Parte Preliminary Hearing, this matter has proceeded on only 1 issue, namely whether the Tribunal erred in law in proceeding to hear the case in the absence of the Applicant. The Applicant in this case was Mrs Lyward who worked for the Respondents, who are a firm of Cleaning Contractors , Area General Cleaning. That firm had at the material time 2 partners, Mr John Bangs and Mrs Jackie Bangs. The Applicant's claim was for monies that she claimed were owed to her by the Respondents and for constructive dismissal.[2]The matter came before the Employment Tribunal sitting at London (South) on Monday 18 October 1999 and it is in effect from the decision of the Tribunal made on that day that this Appeal is brought. Until shortly before that hearing the Respondent Firm was represented by Solicitors but they came off the record shortly before the hearing was due to take place.[3]The hearing had been fixed for 2 days as early as 27 August 1999 and it is apparent from the Notice of Hearing of that date that the parties were warned in paragraph 2 of that Notice that:
"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."
[4]What happened was that on the day of the hearing neither Mr Bangs nor Mrs Bangs were present. In paragraph 14 of their decision the Tribunal says this about that matter:
"On the morning of the hearing Mrs Jackie Bangs of the Respondent telephoned the Tribunal to say that she was unable to attend because she had to take her mother, who is deaf and partially sighted, to hospital. No reason was put forward why Mr Bangs could not attend. The Tribunal heard evidence that Mrs Bangs' father was a fit man in his 60's who looked after Mrs Bangs' five-year old son and clearly could have accompanied his wife to hospital. The Tribunal has considered Rule 12 of the Industrial Tribunals Rules of Procedure 1993 and considered that the conduct of the Respondent in this regard was intended to be deliberately disruptive and certainly unreasonable and Tribunal makes an order in respect of costs against the Respondent in respect of the costs incurred by the Applicant in this matter."
Those costs were assessed at the sum of £122.32.[5]Mrs Bangs, who has appeared in person before us today, has explained to us, as she explained to our colleagues at the preliminary hearing, that she did in fact have a medical emergency on that day and that she made every effort to ask for an adjournment until the next day.[6]On Mrs Bangs' explanation, both her parents are in their seventies and they are both profoundly deaf and communicate by sign language and lip reading. On the morning of the hearing, of 18 October, about 6 o'clock that morning she was telephoned by her father to say that her mother was poorly. She said to her father that if he came to the house to stay with her five-year old son she would take her mother to hospital. She says that she needed to take her mother to hospital because her mother could have problems with communicating with the hospital staff because of her deafness. She therefore took her mother to Lewisham Hospital.[7]She says this in the Statement that she has provided to us today in the course of the hearing of this Appeal:
"I called the Tribunal Office just after 9 o'clock, explained the situation to a Clerk. She told me to call back later. When my father came to the hospital after taking my son to school I tried to call the Tribunal but my mobile phone would not connect. I drove to my office which is a 5 minute drive from the hospital where I was told that someone from the Tribunal Office had called and ask why my husband John Bangs or Petra Prince could not attend in my place. I called and explained that John was not anywhere that would allow him to get to the Tribunal Office along with the fact that I was the one who prepared the case and had all relevant paper work. He would not have been much help. I was told to call back in a few hours. I then returned to the hospital, collected my mother. I took her home and settled her. She had been very upset. I then returned to my office. I once again contacted the Tribunal Office and was informed that the hearing had gone ahead in my absence but I would be able to appeal the decision."
[8]On that basis, says Mrs Bangs, it was an exceptional circumstance and the Tribunal was in breach of the rules of natural justice, or wrongly exercised its discretion, in proceeding to hear the case in her absence.[9]The Respondents to this Appeal on the other hand asked are sceptical about Mrs Bangs' explanations. They also point to the fact that on the day in question she does appear to have been at her office for substantial parts of the day, a matter that is also referred to in the Affidavit sworn by Emma Hopkins to that effect. The Respondents also argue that there is no basis for this Tribunal to say that the Tribunal hearing the case erred in law in their decision to proceed with the hearing in the absence of the Respondent Firm.[10]We have had produced to us the Chairman's notes of evidence about what happened on that day and how the Tribunal approached the matter. There are the following three notes on the Tribunal's file relating to the Respondents' application for an adjournment as shown on page 26 of our bundle as follows:
"Telephone call from Mrs Jackie Bangs (of Respondent). Her mother (who is deaf and partially sighted) has been taken to hospital this morning. There is no one else who can sit with her mother and she will therefore be unable to attend today (listed for two days). There is no one else for the Respondent who can attend the hearing today. She is extremely sorry, but is unable to attend and apologises. She will ring again between 10.15 am or we can speak to her assistant Sam on 0181-695-1010. Message taken by Clare Saunders 18/10/1999 9.15am"
. A second note is as follows:
"18/10 I telephoned the Respondent's contact – Sam. 1. She does not know the whereabout of Mr Bangs 2. She has not heard of Mrs Prince 3. She does not know the name of the hospital. Message taken by C Freeman Checked with my section at 10.35 – no phone call from the Respondent has been received C Freeman"
. And the last note provides as follows:
"File note 18/10 10.45am "
Jackie Bangs (Respondent) rang stating that she was unable to attend due to hospital visit. She said that she could attend tomorrow. She had two contact numbers mobile 0110 7797577, work telephone 0181 695 1010. She also mentioned that "Petra Prince" has not worked for the Company for 18 months. Also she was taking the case for her husband Mr John Bangs. I informed her we will contact her with regard to situation update. Oliver Parsons"[11]The Chairman's notes add as follows:
"(1) The two messages taken at 9.15am and 10.45 were reported back to the Chairman and read out to the Applicant. (2) The Applicant stated that Mrs Bangs' mother is in her late 60's. Her father is fit and able. She has a five year old son whom the granddad looks after. (3) It appears that Mrs Lyward gave this information to the Tribunal prior to her having been sworn at 10.40am when she commenced giving her evidence."
[12]In addition to those matters we have further comments from the Chairman of the Tribunal which were requested following the decision of our colleagues on 25 January 2000 to allow this matter to proceed to a full hearing. The Chairman in those further comments refers to his notes of evidence which are enclosed and sets out the following at paragraph 2:
"Three matters which the Tribunal took into account in considering whether or not to agree to the postponement, which do not feature in the extended reasons, were: (i) Area General Cleaning (the Appellants to the Appeal) were represented by solicitors from 14 April 1999 until 13 October 1999 when they wrote to the Tribunal stating that they were no longer instructed. This letter was written 3 working days before the date listed for hearing. The Tribunal inferred that the solicitors must have informed both Mr and Mrs Bangs that they were required to attend the Tribunal. (ii) As it states in paragraph 14 of the Tribunal's decision no reason was put forward why Mr Bangs could not attend. The Applicant's case was that all preliminary negotiations took place with him as could be seen from the further and better particulars supplied by the Respondent to the appeal by fax on 14 June 1999 to the Appellants' solicitors. (iii) The initial message taken by the Tribunal clerk at 9.15am on the morning of the hearing recorded that Mrs Bangs had stated that there was no one else from the Respondent who could attend the hearing fixed for that day but gave no reason why Mr Bangs was not going to be in attendance. The Respondent to the appeal attended together with her witnesses."
And then the Chairman encloses a transcript of the various notes that had been taken by the Tribunal staff on that day.[13]The jurisdiction of this Appeal Tribunal is limited to deciding questions of law. We cannot go into disputed questions of fact and in this particular case the question for us is whether the Tribunal has been shown to have made an error of law in exercising its powers in the way that it did. The power of the Tribunal to proceed in the absence of a party is set out in the Employment Tribunals (Rules of Procedure 1993, paragraph 9(3). That provision provides as follows:
"If a party fails to attend or 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; …"
[14]So the Tribunal had power to dispose of the Application in the absence of the Respondent and the question is whether they exercised their discretion to do so in a proper way. In order to succeed on an Appeal such as the present the Appellant has to demonstrate to us that the Tribunal exercised its discretion in a way that could not have been exercised by any reasonable Tribunal properly directing itself to the matters which it was obliged to take into consideration. We note before we come to that issue that paragraph 11 of the Tribunal's Rules of Procedure provides also for a review of the Tribunal's decision whereby a Tribunal has power on the application of a party, or its own motion, to review its decision on the grounds - under paragraph 11(1)(c) - that the decision was made in the absence of a party. There was no application made to this Tribunal in this case for a review of the Tribunal's decision.[15]In approaching these matters we have to bear in mind that, in principle, the Tribunal is master of its own procedures. Employment Tribunals are extremely vulnerable to last minute non-appearances by parties. It is therefore, as the Notice of Hearing itself stresses, only in wholly exceptional circumstances that Tribunals are minded to postpone cases due to the absence of witnesses or other parties who do not turn up on the day of the hearing.[16]Here the Applicant, Mrs Lyward, was herself present with witnesses to proceed with her case. The Tribunal, of course, in these circumstances has to bear in mind not only the question of fairness to the Respondents, but also a question of fairness to the Applicant who is ready to proceed, before granting an adjournment or deciding to postpone the case.[17]In this particular matter the Respondent was a Firm and that Firm is in law constituted by both Mr Bangs and Mrs Bangs. In this case Mr Bangs was not present and no explanation that we have been able to detect for his non-appearance at the Tribunal, on the day fixed for the hearing, has been put forward. It appears from the Tribunal's decision itself that Mr Bangs was a crucial witness to the events which had transpired, and it was he, Mr Bangs, who it was alleged was responsible for the Applicant's constructive dismissal.[18]What has been said to us today by Mrs Bangs is that in fact Mr Bangs was not concerned any longer with the business or with the case and that "Mr Bangs would not have been of much help". That seems to us somewhat implausible given the crucial role that Mr Bangs apparently played in the dispute between the parties. In the absence of any explanation as to why Mr Bangs did not attend on that day we consider that the Tribunal was fully justified in having regard to the fact, as it says in paragraph 14 of its decision, that "No reason had been put forward why Mr Bangs could not attend." It is indeed, emphasised in the further comments of the Chairman, to which I have just referred that the absence of Mr Bangs was a factor that weighed very considerably with the Tribunal in reaching its decision. On that ground alone we consider that the Tribunal was within the proper exercise of its discretion in deciding to proceed with the case.[19]As far as Mrs Bangs is concerned, we have to say that we have considerable sympathy with the account that she has given us. It does appear, on the basis of that account, which I say in parenthesis is not wholly accepted by the Respondent, that there were certain difficulties that day regarding her mother. It does, however, appear that at various stages during the day she was back in the office for considerable periods of time and that is not effectively disputed. Her father was apparently able to take her son to school and was later able to be at the hospital with her mother. The information that the Tribunal was passed about that by Mrs Lyward, the Applicant, the gist of which was that the father was fit and would have been able to take the mother to the hospital, did not perhaps entirely fit the circumstances as Mrs Bangs has explained them to us, but the fact remains, as far as we can see from the explanations that we have received, that Mrs Bangs was able to be back from the hospital and be in the office for a considerable period. It is true that the Tribunal did receive various messages during the day but it does seem to us that, in the circumstances, Mrs Bangs could perhaps have done more to attend the Tribunal on that day than in fact she did.[20]However, the question for us, as we have said, is whether the Tribunal in the situation that it was in, erred in law in its decision to proceed with this matter. The Tribunal certainly made enquiries and received information, and endeavoured to ascertain what was occurring, so it is not a case where a Tribunal acted without making any attempt to investigate what the situation was. In view, particularly, of two matters - that Mr Bangs did not attend, and that the Applicant was there ready to proceed - we are satisfied that it has not been shown that the Tribunal erred in law in exercising its discretion to proceed with the case. We say that irrespective of whether or not Mrs Bangs could perhaps have done more to attend.[21]We would add that as we have already said, there is a procedure under Regulation 11 of the Tribunal's Rules of Procedure whereby a party can ask for a review of a decision where it has been made in that party's absence. In such a review it would be incumbent on the person applying to demonstrate:(1) That there was good reason for the absence, and(2) That there was a good defence on the merits of the claim. It is highly desirable in cases such as the present that this procedure is followed and not least because the Employment Appeal Tribunal is not an appropriate Tribunal to be dealing with disputes of primary fact which involve the credibility of witnesses.[22]However, for the reasons we have given we have arrived at the conclusion that no error of law has been demonstrated in the present case and that accordingly, this Appeal must be dismissed.[23]As regards the Respondent's application for costs, under rule 34 of the Employment Appeal Tribunal Rules, costs may be awarded in cases where proceedings were unnecessary, improper or vexatious or there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings. That means the proceedings before this Tribunal. Our colleagues gave leave for this Appeal to proceed to a full hearing on the basis that there was an arguable point. The matter has been argued. It has been explored in depth and in those circumstances we do not feel able to bring ourselves within Rule 34. So the application for costs is refused.