MRS L G MILLS v MR R H JOHNSON [2001] UKEAT 1107_00_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1107_00_1907Case No Appeal No. EAT/1107/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS L G MILLSAPPELLANTMR R H JOHNSONRESPONDENT
Before
His Honour Judge Peter Clark Mr J R Crosby Mr D A C LambertDate 19 July 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent No appearance or representation by or on behalf of the Respondent JUDGE PETER CLARK On 27 April 2000 the Appellant, Mrs Mills, presented an Originating Application to the Employment Tribunal claiming a redundancy payment, notice and holiday pay from her former employer, the Respondent Mr R H Johnson, by whom she alleged she had been employed as a shop assistant from 8 September 1992 until 14 April 2000. In her particulars of complaint she said this:
"I have not been paid any redundancy money and notice or holiday pay."
[2]The Originating Application was registered by the Cardiff Employment Tribunal and given a case no, 1601226/00. It follows that the Secretary was not of the opinion, for the purposes of Rule 1(2) of the Employment Tribunal Rules of Procedure, that the application did not, on the facts stated, entitle the Applicant to a relief which the Tribunal had no power to give.[3]A copy of the Originating Application was served by the Tribunal on the Respondent, who failed to enter a Notice of Appearance.[4]Notice of hearing for the 19 July 2000, to take place at Hereford, was sent to the parties. On 18 July both the Appellant and the Respondent faxed the Tribunal.[5]In his fax, the Respondent said that he had been away and had just seen the notice of hearing. He would be unable to attend the next day. He added this:
"I have no income except Income Support and no savings. My business has closed. I did write to Lyn Mills advising her of this which I believe was sent to Greece."
[6]In her fax, sent from Greece, the Appellant informed the Tribunal that she would not be able to attend the hearing because she was in Greece. She said that the Respondent had not spoken to the DTI and as a result the Department presumed that he did not agree that she was entitled to redundancy money. He also said that he had no money. She ended:
"Please can you fax me back on this number to let me know if there is a problem if I do not attend."
[7]The Tribunal did not reply to that fax. On 19 July the Tribunal, under the chairmanship of Miss C Collier, was convened at Hereford. Neither party appeared or was represented.[8]By a decision with what are described as full reasons promulgated on 18 August 2000 the Tribunal dismissed the complaint. Those reasons read, in full, as follows:
"1. The applicant submitted an IT1 in which she claimed redundancy, notice and holiday pay. The respondent did not enter an appearance. 2. The applicant informed the Tribunal office she would not be attending the hearing as she was staying in Greece. In her IT1 the applicant did not give any substantive details in support of her claim. The Tribunal therefore dismissed the application."
[9]It is against that decision that this appeal is brought. It was allowed to proceed to a full hearing by the President, Mr Justice Lindsay sitting with members at a preliminary hearing held on 7 March 2001.[10]Rule 9(3) of the Employment Tribunal Rules of Procedure provides:
"(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)."
[11]It follows that where a party, in particular the applicant, fails to attend a hearing, the Tribunal may:(i) dismiss the application or(ii) dispose of the application in the absence of the party or(iii) adjourn the hearing to a later date. Neither party has appeared before us at this appeal hearing, therefore we have considered this matter on the papers.[12]It seems to us that in dismissing the application the Employment Tribunal fell into error in the following respects:(1) The Tribunal did not, on the face of its full Reasons, consider adjourning the hearing.(2) If it did, then it failed to exercise its discretion judicially in circumstances where the Appellant had faxed the Tribunal the previous day, explaining the reason for her absence and invited a response. She ought to have been advised of her right to seek an adjournment. See Holland v Cyprane Ltd [1977] ICR 355 .(3) In not granting an adjournment the Tribunal failed to take into account a relevant factor, namely that, the Respondent having failed to enter an appearance, no injustice would have been caused to either party by granting an adjournment. See Masters of Beckenham Ltd v Green [1977] ICR 535.(4) In the proper exercise of its discretion, the Tribunal ought to have granted an adjournment in the circumstances of this case. See Priddle v Fisher & Sons [1968] 3 AER 506 .(5) The Tribunal, before dismissing the application, was required to consider the Originating Application or Notice of Appearance and any written representations before them. On the material before them: (a) the Appellant claimed that she had been employed by the Respondent for seven years and had been dismissed in circumstances amounting to redundancy without a redundancy payment, payment in lieu of notice or outstanding holiday pay. The claims were not quantified. (b) The Respondent had not entered an appearance, nor did he dispute the claim. He said that he had no money. His business had closed. (c) The Appellant had not been asked for further particulars of her claim, either by the Respondent or by the Tribunal of its own motion (Rule 4(1)(a)). The claim had been accepted. In these circumstances, no reasonable Tribunal, properly directing itself could, in our judgment, dismiss the application on those facts.[13]For these reasons we shall allow this appeal and remit the case for rehearing before a fresh Employment Tribunal. Since it appears that any claim may have to be met out of the statutory fund, the Appellant is directed to provide a copy of this judgment to the relevant Government Department so that the Secretary of State may, if so advised, apply to be joined in the proceedings.[14]Finally, and in the exercise of our powers under Section 35(1) of the Employment Tribunals Act 1996 , we direct that the Appellant serve full particulars of her claims on the Employment Tribunal and the Respondent. These directions are to be complied with by the Appellant within 21 days of the promulgation of this judgment.