MR L FORBES v MR H BROWN & OTHERS [2001] UKEAT 0343_00_1311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0343_00_1311Case No Appeal Nos. PA/0343/00 & EAT/0786/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L FORBESAPPELLANTMR H BROWN & OTHERSRESPONDENT
Before
His Honour Judge Peter ClarkDate 13 November 2001
[1]APPEARANCES For the Appellant APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK This case has had an unusual history, which is as follows.[2]On 8 September 1999 the Applicant, Mr Herman Brown, presented an Originating Application to the London (South) Employment Tribunal in which he claimed holiday pay, pay in lieu of notice and redundancy pay from a single Respondent, Mr Forbes. He alleged that he had been employed by that Respondent as a bakery supervisor at the Cornfield Bakery in Thornton Heath, Surrey, from December 1989 until his dismissal on 16 July 1999.[3]Mr Forbes entered a Notice of Appearance stating that the Applicant's employer was Cornfield Bakeries Ltd (the Company), then in liquidation.[4]In these circumstances, when the matter first came before an Employment Tribunal chaired by Mr David Milton on 15 February 2000 there were then 3 Respondents – Mr Forbes, the Company and the Secretary of State, who would be liable for some or all of the payments claimed by the Applicant against the Company now in liquidation. Mr Forbes was then represented by Counsel and the Applicant by his namesake, Mr Colin Brown. It seems that the scope of the claim had been expanded to include a claim of unfair dismissal. One particular issue which arose was whether there had been a relevant transfer of the business in which the Applicant was employed from the Company, or the liquidator, to Mr Forbes prior to the Applicant's dismissal.[5]At all events a compromise agreement was reached, reduced into writing and signed by the parties representatives. In short, the Applicant accepted the sum of £5,800 in full settlement of his claims, payable by Mr Forbes in instalments.[6]The Employment Tribunal accordingly made a consent order in the following terms:
"(i) the claim against the second and third Respondents is dismissed; (ii) by consent the claim against the first-named Respondent, Mr L Forbes is withdrawn upon terms in writing agreed between the parties and their representatives signed and lodged with the Tribunal. Liberty to apply as to implementation of the terms is granted until 1 October 2000. If no further application is made by that date the Originating Application stands dismissed upon withdrawal."
That decision was promulgated with Extended Reasons on 22 February 2000.[7]Mr Forbes made no payments under the agreement, but instead entered an appeal against the Employment Tribunal's decision by letter dated 15 March 2000.[8]Correspondence followed and by letter dated 24 May 2000 the Registrar ordered, pursuant to Rule 3(3) of the Employment Appeal Tribunal Rules, that no further action be taken on the appeal on the basis that the Employment Appeal Tribunal had no jurisdiction to hear an appeal by the Respondent against an agreed withdrawal on terms by the Applicant.[9]Mr Forbes expressed his dissatisfaction with that order by letter dated 26 May 2000 and on 13 June 2000 the Registrar directed that the matter be set down for a Directions Hearing before the President on a date to be notified. In the event that Directions Hearing has been overtaken by events, although it is formally listed before me today. I shall return to it.[10]On 4 September 2000 the matter came back before Mr Milton's Employment Tribunal. It seems that the Applicant wished to re-open the original consent order and the Respondent desired a postponement and also wished to have the Employment Tribunal proceedings re-opened. In these circumstances the Employment Tribunal re-listed the case for 8 November 2000.[11]On that day the Applicant and his representative appeared before the Employment Tribunal; the Respondent did not. The Employment Tribunal proceeded to hold a review hearing as a result of which the original order was set aside; the case was heard on its merits; the Employment Tribunal found that the relevant employer, following a transfer from the Company, was Mr Forbes; that he had unfairly dismissed the Applicant and they then went on to assess compensation for unfair dismissal in the sum of £10,450 by way of a compensatory award and a basic award of £3,300. There also appears to have been a further award of £250 holiday pay, reading the Employment Tribunal's decision with Extended Reasons dated 22 November 2000 as a whole.[12]Now there is an appeal against that review decision by a letter from the Respondent's accountants dated 6 December 2000. That appeal is now before this full appeal tribunal for Ex Parte Preliminary Hearing.[13]The first issue which arises this morning is whether both the Directions Hearing and the Preliminary Hearing should be adjourned. An application for an adjournment was made by letter dated 6 November 2001 from Mr Forbes' accountants, Mann & Co. The basis of the application is that he is unfit to attend today. Enclosed with that letter is a certificate from a gentleman called Edward Emmanuel Adams, who gives his qualifications as MBBS, LRCP, MRCS and who states that Mr Forbes is suffering from high blood pressure and cerebro-vascular ? accident and that he is unfit to attend court today.[14]The accountants' letter states that those accountants are not able to attend on his behalf today and that Mr Forbes is unable to afford legal representation. It continues:
"We have been informed by Mr Forbes' family that the hearing must only take place in Mr Forbes' presence at a time when he is medically fit to be able to attend and thereby have a fair hearing. They have further advised to inform your office that if the hearing takes place in Mr Forbes' absence, it will be an infringement of Mr Forbes' human rights for which compensation will b sought by his family."
[15]Dealing first with the Preliminary Hearing, we are each of us unimpressed by the threat of a compensation claim for the infringement of Mr Forbes human rights if this hearing proceeds today. It should be clearly understood that all parties to litigation have a right to a fair and public hearing within a reasonable time. (Article 6(1). ECHR.) It is abundantly clear to us that Mr Forbes, having originally agreed to compensate Mr Brown for his unfair dismissal, has since sought studiously to avoid payment. There has been no explanation for his failure to attend the review hearing held on 8 November 2000. He has advanced no grounds at all for appealing the review decision. These proceedings have already gone on for long enough. In these circumstances we reject the application for an adjournment and dismiss the review decision appeal.[16]Reverting to the Directions Hearing, in view of our decision to uphold the review decision the original appeal against the consent decision is now academic. That decision has been set aside. That seems to me to be a further reason for affirming the Registrar's order that no action should be taken on the first appeal.