MR J ROBERTS v BIRKENHEAD SIXTH FORM COLLEGE [2001] UKEAT 0449_01_2109

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0449_01_2109Case No Appeal No. EAT/0449/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J ROBERTSAPPELLANTBIRKENHEAD SIXTH FORM COLLEGERESPONDENT
Before
His Honour Judge SerotaDate 21 September 2001
[1]APPEARANCES For the Appellant APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE SEROTA QC This is a Preliminary Hearing in the case of Mr J Roberts v Birkenhead Sixth Form College . On 21 February 2001 the Employment Tribunal chaired by Mr M D Homfray-Davies, sitting at Liverpool dismissed his complaint that he had been refused employment at Birkenhead Sixth Form College because of his trade union membership.[2]His application was dismissed and he was ordered to pay costs of £500 to the Respondent having failed to attend. The circumstances giving rise to that decision by the Employment Tribunal were as follows. On Sunday 17 December, that is a day before the hearing that was to take place on Monday, 18 December, a fax was received by the Tribunal timed at 9.40 pm, in which the Applicant sought an adjournment on the basis that he had an infection of his throat or his chest.[3]This was considered by the Tribunal and Mr Roberts had said and we quote from the decision of the Tribunal that Mr Roberts said:
".. am in no fit state to attend a day-long Tribunal. I have left it as late as possible to establish my unfitness to attend tomorrow because I did not wish to inconvenience either the Tribunal or the Respondent…"
[4]Mr Roberts had made no attempt to contact the Respondent or its solicitors nor did he further contact the Tribunal. The Chairman of the Tribunal was aware, that Mr Roberts had made a number of other applications to the Tribunal between August 1998 and May 2000 in some of which he had made late applications for adjournments on medical grounds. According to the Chairman there were no less than 12 applications. The Tribunal stated and we quote:
"But for the manner in which Mr Roberts has conducted himself in certain of those cases his application might have been expected to succeed."
[5]The Tribunal refer to a number of cases in which Mr Roberts had sought adjournments and had enclosed doctor's notes, mention is made of one case (2101678/00) where the Chairman had stated that any future application for a hearing to be postponed on health grounds would require a prior doctor's certificate concerning Mr Roberts' inability to attend the hearing rather than attend work. This particular claim was dismissed after a request for a postponement by the Applicant on the ground of work commitments had been refused. Mr Roberts failed to attend the hearing. He asked for a review which was refused. In another case, he brought against Plessington Catholic High School, the Chairman noted that a hearing listed for 30 November 2000 had been postponed at Mr Roberts' request. The case was re listed for 5 December 2000 and by a facsimile dated 4 December 2000 and timed at 17.46 Mr Roberts applied for a postponement on the ground that he was ill with a heavy cold but provided no doctor's note or other confirmation of his illness.[6]The Tribunal adjourned the case to 5 January and by a facsimile of 4 January 2001 timed at 07.52 am he applied for a postponement on the ground of a clash with a prior engagement. The postponement was refused and the application was dismissed on the basis of non-attendance.[7]The Tribunal continued and we quote:
"In our judgement it is wrong to ignore the fact that the applicant knows, by reason of his previous dealings with the tribunal, that an application for a postponement on the grounds of ill-health should be supported by medical evidence certifying ill-health prevents attendance at the tribunal. The applicant has a history of failing to attend tribunal hearings. There are reasonable grounds for suspecting that the facsimile sent at 21.40 on Sunday 17 December 2000 was a deliberate ploy to put the respondent to expense, since it would be impossible for the tribunal to notify them in advance. In these circumstances we refuse the request for a postponement."
[8]A review was sought by the Applicant which was refused on 8 March. In Mr Roberts' Notice of Appeal he complains that the Tribunal denied him his rights to a fair trial under Article 6 of the European Convention of Human Rights by proceeding in his unavoidable absence. It is also asserted that the Chairman displayed gross and blatant bias against the Applicant in his Extended Reasons.[9]Further, it is said that Extended Reasons failed to mention Mr Roberts' twelve years experience as a professional journalist. He also claimed that the award of £500 costs was grossly unfair, outrageous, and further evidence of the Chairman's bias of prejudice against the Applicant. The interests of justice, it is said require the overturning of this "tainted" decision.[10]We have also had the benefit of seeing an affidavit from Mr Roberts which is dated 7 June 2001 in which he makes a number of allegations of bias and prejudice against the Chairman and he accuses the Chairman of acting out of political spite and malice. He suggests that the Chairman showed contempt for Mr Roberts and that he discriminated against Mr Roberts contrary to Article 14 of the European Convention of Human Rights by discriminating against him on the basis of his political beliefs.[11]We have considered these matters in the absence of Mr Roberts. Mr Roberts sent a fax to the Employment Appeal Tribunal timed at 7.28 this morning in which he stated that he was unable to travel to today's appeal hearing due to illness (influenza). "My apologies to all concerned. I trust justice will be done in my absence." We have taken this into account but we are not asked by Mr Roberts to adjourn the hearing. It seems to us that there is no fairly arguable point of law in any of the grounds of appeal. It seems to us that the Tribunal was perfectly entitled to come to the conclusions that it did and there is nothing in the Tribunal's conclusions that we would regard as amounting to an error of law either in respect of the decision to refuse an adjournment, or in respect of the award of costs. In so far as the allegations of bias against the Chairman are concerned, these allegations, it seems to us, are without substance and again there is no arguable case that should go forward to a further hearing. In those circumstances the Appeal stands dismissed.