THE SILVER FUND INVESTMENT.COM LTD v MISS S C JAMES [2002] UKEAT 1169_01_2201

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1169_01_2201

Case No Appeal No. EAT/1169/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

THE SILVER FUND INVESTMENT.COM LTDAPPELLANT

MISS S C JAMESRESPONDENT

Before

MR COMMISSIONER HOWELL QC

MRS T A MARSLAND

PROFESSOR P D WICKENS OBE

Date 22 January 2002

[1]APPEARANCES For the Appellant MR PETER MOONEY (Representative) Employment Law Advisory Services Lancaster House Old Wellington Road Eccles Manchester M30 9QG MR COMMISSIONER HOWELL QC In this appeal which is before us today for Preliminary Hearing a company called Silver Fund Investment.Com Ltd. which was the Respondent to the Tribunal proceedings below, seeks to have set aside as erroneous in law the decision of the London South Employment Tribunal sitting on 7 August 2001 set out in Extended Reasons sent to the parties on 11 August 2001 at pages 16-28 of the Appeal file before us.

[2]That was a decision by the full Tribunal on proceedings brought by Miss Sarah Catherine James, a former employee of the Appellant before us, which I will call "Silver Fund", alleging unfair dismissal and breach of contract in relation to the way her employment was terminated by a letter given to her on 22 March 2001, with effect from 30 April 2001 which was the period of notice she was given.

[3]Miss James had been head of Silver Fund's jewellery department. The basis of her claim was that she had been ill in January and February 2001 but had been unsympathetically treated and required to work even though she was not fit to do so. Then they had unreasonably dismissed her.

[4]Silver Fund's answer to that was by the Notice of Appearance dated 5 July 2001 alleging that she had been dismissed for lack of capability or some other substantial reason. It accepted that she had been diagnosed as suffering from clinical depression. It denied that she had been under pressure to work full time if unable to do so for medical reasons. It asserted that the termination of her employment by letter dated 22 March 2001 with effect from the end of April had been fair and reasonable. It denied that any amount was due to her under her contract. That detailed Notice of Appearance running to some 34 paragraphs was professionally drafted for it by solicitors, Cameron McKenna.

[5]What happened after that was that the Tribunal directed that the case should be set down for hearing, with what in other contexts would be viewed as commendable speed. The Notice of Hearing dated 10 July 2001 ordered that the hearing of the full merits of the entire application should take place before the full Tribunal on 7 August.

[6]On 16 July, and again on 19 July, Cameron McKenna made applications on behalf of Silver Fund for that hearing date to be postponed on the ground that the principal director of the company, a Mr Crawford, had already arranged to be away on his family holiday on that date. Those requests were refused by the Tribunal Chairman having charge of the case. On 23 July 2001 Silver Fund changed their representation from Cameron McKenna to the firm of representatives which now act for them, a firm called Employment Law Advisory Services, who are not solicitors but describe themselves as employment law and health and safety experts. They were from then on responsible for the conduct of the proceedings on behalf of Silver Fund, and appeared before us today on this appeal by Mr Peter Mooney. His firm made two further requests for the hearing date to be postponed, repeating the previous grounds and in particular, emphasising the importance of Mr Crawford to the presentation of their case and saying that because he had already made holiday arrangements it would be difficult or inconvenient for him to attend. Those further requests were also declined by the Tribunal Chairman. There is no dispute that the facts that applications for postponement had been consistently rejected, that the hearing date for 7 August for the full proceedings remained fixed, and that the proceedings would be going ahead on that date, were duly and clearly notified to Silver Fund's representatives by the Tribunal.

[7]What happened when the case came on for hearing on 7 August 2001 was that the Applicant attended, by her counsel, with her case properly prepared and ready to go ahead. Silver Fund and their representatives did not attend at all. As recorded by the Tribunal Chairman in the statement of Extended Reasons, initially there was no explanation for their non attendance but during the morning of the hearing a fax was sent to the Tribunal repeating once again the request for the hearing to be postponed generally, because of the non-availability of Mr Crawford, the principal witness, on his holiday. The Tribunal considered the contents of that fax, decided that it was not right to postpone the proceedings as Silver Fund's new representatives had yet again asked, and therefore proceeded to hear the evidence that was before them: they gave careful consideration to the documentary evidence in the case and the detailed terms of the grounds of resistance drafted by the Silver Fund's solicitors. They found the case of unfair dismissal proved, and made an award of compensation in favour of the Applicant which they directed to be paid forthwith, together with a small amount for breach of contract in relation to outstanding pension contributions. They concluded by recording that they found Silver Fund's defence of the proceedings had been misconceived, and it and its representative had, in conducting the proceedings, acted unreasonably. For those reasons the Tribunal made an award of costs, in exercise of their discretion to do so on those grounds. They assessed the costs to be paid by Silver Fund to the Applicant at £5,000 plus VAT, which was rather less than the actual costs shown as incurred on her behalf in an assessment and breakdown produced at the hearing on 7 August 2001.

[8]Against that decision, Mr Mooney, on behalf of Silver Fund, has sought to pursue its appeal in terms of the Notice of Appeal dated 17 September 2001. This states the ground of appeal in various ways which he has summarised and amplified before us in argument this morning. Although put in various ways, the sole ground on which the Notice of Appeal and Mr Mooney's argument was based was that it was perverse and an error of law for the Employment Tribunal to have gone ahead at all with the hearing on 7 August 2001, despite the clear indications it had given that this would be the effective hearing, when repeated applications for that hearing to be postponed had been made on behalf of Silver Fund and it did not attend before the Tribunal in order to present its case. In those circumstances, submitted Mr Mooney, as Respondent, Silver Fund had been deprived by the Tribunal of the opportunity of a fair hearing of its side of the case. When his firm failed to turn up and sent the fax asking again for the postponement of the proceedings, it was thus perverse of the Tribunal not to accede to that application, accept as a fait accompli that the Tribunal hearing could not go ahead on that date in the absence of the Respondent and its principal witness Mr Crawford, and adjourn to a further date.

[9]The Tribunal considered the merits of the application for adjournment exhaustively, before recording their decision to go ahead and deal with the merits of the case itself. Paragraphs 1-17 of their Extended Reasons demonstrate the way in which they dealt with the application as follows:

"1 By an Originating Application presented to the Tribunal on 11 June 2001, the Applicant claims that she was unfairly dismissed by the Respondent and that the Respondent were in breach of contract in failing to pay her pension contributions as agreed. 2 The Respondent by its Notice of Appearance filed at the Tribunal on 5 July gives notice of their intention to resist the application, admits that the Applicant was dismissed, argues that the reason for dismissal was capability and/or some other substantial reason. 3 By a Notice of Hearing dated 10 July the full merit hearing was set for 7 August. 4 Various applications were made by the Respondent's solicitors, Cameron McKenna and latterly by their representatives ELAS for a postponement of that hearing, initially on the ground that Mr Crawford was "unable to attend"

. Concern was initially expressed that the case needed two days for its disposal and the Tribunal were able to make the 8 August available. 5 ELAS who took over representation of the Respondent from Messrs Cameron McKenna also in their initial application for a postponement indicated that their representative was unable to attend on 7 August. ELAS had it appears taken on the case knowing that they could not attend the hearing on the date fixed. 6 On the morning of the hearing the Respondent faxed to the Tribunal a request for a postponement to be considered by the Tribunal at the commencement of the proceedings. For sake of completeness we set out that application for postponement in full herein under. "1. We, Employment Law Advisory Services Ltd, of Lancaster House, Old Wellington Road, Eccles, Manchester, M30 9QG, act on behalf of the Respondent in this matter. 2. The Application in this matter was filed at the Tribunal on 11 th June 2001 and forwarded to the Respondent on 14 th June 2001. 3. On 5 th July 2001, the Notice of Appearance was filed on behalf of the Respondent. 4. On 10 th July 2001, the Tribunal issued a Notice of Hearing for Tuesday 7 th August 2001. 5. You will appreciate that August is peak holiday time, and the Respondent's principal witness Alistair Crawford had already arranged his family holiday for the week commencing the 4 th August 2001. 6. Consequently, a request for a postponement was submitted to the Tribunal by fax on 16 th July 2001. 7. By a letter dated 20 th July 2001, the Tribunal refused the request, by stating that it was not sufficient to state that Mr Crawford was unable to attend. Messrs Cameron McKenna had already learnt of the content of the Tribunal's letter of 20 th July 2001, the day before, and consequently in a fax dated 19 th July 2001, a further request for a postponement was made confirming the reason for the request, i.e. that Mr Crawford would be away on holiday and confirming that the Respondent's case would be prejudiced if the hearing was to proceed on 7 th August 2001, in his absence. 8. A further requests were made to the Tribunal by us, dated 27 th July and 2 nd August 2001, which I have also been denied. 9. It is submitted that the Respondent's request for postponement is perfectly reasonable and proper, considering the importance and relevance of Mr Crawford's evidence. Mr Crawford is the Respondent's principle witness, as referred to in paragraph 23 of the Notice of Appearance, which refers to a meeting on 22 nd March 2001, with the Directors, shareholders and two other Heads of Department. There are two Directors of which Mr Crawford is one. The meeting discussed the situation of the Applicant, Miss James, but does not recall that it was the Directors, Shareholders and Heads of Department that made the decision to dismiss. 10. In the Originating Application, filed by the Applicant, Mr Crawford is referred to in paragraph 6, where a telephone conversation is recited, paragraph 7 in respect of e-mails from Mr Crawford, where further comments are attributed to Mr Crawford. In the Notice of Appearance, these assertions are denied by the Respondent to the action and it is therefore very apparent that the evidence of Mr Crawford as to precisely what is said in relation to the Applicant's allegations is crucial to the Respondent's case. The actual decision to dismiss is only one feature of the evidence in an unfair dismissal case. 11. There are other areas of the Respondent's case where Mr Crawford has dealt with the Applicant personally, this is detailed in paragraphs 8, 12, 13, 14, 16, 17, 18, 19, and 22, therefore it is submitted that Mr Crawford is the key witness for the Respondents and therefore the Respondent will not be able to adequately defend any allegations made by the Applicant. This is clearly contrary to Article 6 of the Human Rights Act 1998, in that the Respondent will not receive the opportunity for fair trial. It is submitted a party to Tribunal proceedings is entitled to a fair hearing and where an individual wishes to give evidence, and this evidence is crucial to the proceedings, this should be taken into consideration by the Tribunal when considering a request for postponement. 12. The Respondent therefore requests this Tribunal grants a postponement, which will enable the Respondent to call Mr Crawford as a witness to give evidence on its behalf in this matter. 13. It is further submitted that the Respondents are entitled to a fair hearing, and the parties in this matter are entitled to see justice being done, and applied fairly. In this case, the Respondent has followed the Tribunal's Rules of Procedures, in requesting postponement and making a further request to the Regional Chairman. It is submitted the request made on 2 nd August 2001, to the Regional Chairman was not dealt with by the Regional Chairman, but actually dealt with by the Chairman of the Tribunal, Mr Warren, who had dealt with the request for postponement of this matter throughout. 14. It is further submitted that any decision taken by the Tribunal today to proceed with this case will interfere with the rules of natural justice, in that a request to the Employment Appeal Tribunal is pending determination, and cannot be dealt with due to the Employment Appeal Tribunal presently being in recess. 15. I would request the Tribunal looks favourably upon this submission, and grant the Application for postponement. 16. This concludes the Respondent's submissions." 7. At the start of the hearing the Chairman read out aloud the Respondent's application for a postponement. 8. There are no new matters raised in this application, the Respondent's representative is rehearing old ground, save that in this instance the Respondent representative refers to Article 6 of the Human Rights Acts 1998 which we will deal with later. 9. We remind ourselves that this case is a case of unfair dismissal. It is for the Respondent's to show what was the reason for dismissal, that it was a potentially fair reason and it is then for the Tribunal to decided whether in all the circumstances it was reasonable for the Respondent to treat that reason as a ground for dismissal. The most important witness for the Respondent is the person or one of the persons who were party to the decision to dismiss. In the Notice of Appearance at paragraph 23 the Respondents provide that "On or around 22 nd March 2001 the Directors, Shareholders and the other two heads of department had a meeting to discuss the position of the Applicant. During this meeting it was decided that the Respondent's business due to its small size and administrative resources and the fact that business was carrying forward losses from previous years could not continue to employ the Applicant, as she was only able to work either part of or her full schedule." The paragraph then continues to say why it was that those persons at that meeting reached the decision not to continue to employ the Applicant. 10. At Paragraph 9 of the latest application for a postponement, the representative is trying to suggest that paragraph 23 is incorrect but do not actually say so in words, and it is further noted that the Applicant's letter of dismissal copy of which is at page 87 and 88 in the bundle is actually signed by both directors, Mr Crawford and Mr James. So why we ask could not Mr James attend, there has been no suggestion that he is unavailable for any reason. he signed the letter of dismissal, it appears from paragraph 23 that he was a party to the decision to dismiss. Mr James could attend the Tribunal and give evidence as to the reason for the dismissal. 11. As to events prior to the dismissal, in this case Mr Crawford had made his views known to the Applicant in writing by e-mail. Those e-mails speak for themselves they are in the bundle. 12. Article 6 of the Human Rights Act provides that in determination of his civil rights and obligation everyone is entitled to a fair and public hearing, within a reasonable time by an independent and impartial tribunal established by law. 13. The Employment Tribunal Rules 2001 provide at Regulation 10 the over riding objective of the Rules is to enable Tribunals to deal with cases justly, and that in dealing with cases justly includes so far as practicably ensuring that the parties are on an equal footing, saving expense, dealing with the case in ways which are proportionate to the complexity of the issues and ensuring that it is dealt with expeditiously and fairly. The Tribunal is given power to effect the over riding objective in exercise of its powers under the Rules. The parties are required to assist the Tribunal to further the over riding objective. 14. The health of the Applicant in this case has suffered, she has been and is currently seeking assistance of a psychiatrist. It is important that the case should be dealt with expeditiously. The Respondents have been given the opportunity to attend and to call witnesses relevant to the issues. The Respondents have chosen not to attend, not to call Mr James or others who were at the meeting referred to at paragraph 23 of the Notice of Appearance, the Respondents have failed to put in written statements by Mr James and/or Mr Crawford. Have provided no documentary evidence to support what is alleged relating to capability in the Notice of Appearance. The Applicant on the other hand whose initial choice of representative was unable to attend through holidays appears represented by Counsel. The Applicant has provided written witness statements. The Applicant has prepared fully. It appears the Respondents, although represented initially by Messrs Cameron McKenna and latterly by ELAS have not prepared at all. They have not focussed on the case at all. 15. The application at Article 6 requires a balancing act by the Tribunal which has to consider the rights of both parties. 16. Weighing all the matters in the balance, this Tribunal considers that it is appropriate to refuse the Respondent's application for a postponement and in the circumstances to proceed to hear the case in their absence. The Tribunal find no reason why Mr James – a party to the decision to dismiss could not have attended. 17. The Tribunal then went on to consider the Respondent's Notice of Appearance in detail."

[10]The Tribunal then proceeded to consider the merits of the case. They went, as we have said, in considerable detail into the documentary evidence which demonstrated the way in which events had developed between Miss James and her employers, and the details of her illness leading up to the decision to dismiss her. The Tribunal in particular noted and recorded as findings of fact in paragraph 19. (xii) of their Extended Reasons, that an e-mail had been sent by Mr Crawford to all of the staff on the same day as he had sent an e-mail to Miss James dealing in detail with arrangements that might be made to accommodate her if she was unable to work full-time. The e-mail sent the same day to the staff however, drew their attention to the difficulties which sickness caused to the firm. It suggested that staff might be taking sick days off for improper reasons, and contained the following sentences:

"Others, it has to be said, appear occasionally only too ready not to make that effort and take sick days off on more questionable grounds." and: "

There is a message here and we feel extremely uncomfortable when people abuse our existing system." Those passages and the timing of the messages, in our view, gave grounds for an irresistible inference about the attitude of Mr Crawford towards Miss James' illness, though it is, as noted above, now accepted by Silver Fund as having been genuine.

[11]Finally, the Tribunal also referred to the terms of the letter of dismissal of 22 March 2001 which they set out in extenso . As recorded in their paragraph 9 quoted above; it had been sent to Miss James following a meeting at which, as stated in paragraph 23 of the Respondent's Notice of Appearance, not only Mr Crawford, but also the directors, shareholders and the other two heads of department had been present and the position of the Applicant had been discussed. It was during that meeting, according to Silver Fund's answer, that it was decided that the business could not continue to employ the Applicant and the decision was taken to terminate her employment. The Tribunal also recorded, having set out the terms of the letter of dismissal which was stated to have immediate effect to give notice to terminate Miss James' employment from the end of April, that:

"19.(xviii) There was no attempt to discuss the Applicant's medical condition. The Applicant had no opportunity to make representations had no inkling that her employment may be at risk and likely to terminated."

[12]On the basis of their findings as to what the facts had been, arrived at we emphasise largely by reference to the documentary evidence including e-mails and letters, the Tribunal concluded that, even accepting Silver Fund's explanation that the reason for Miss James' dismissal had been capability or some other substantial reason nevertheless her dismissal had been unfair. As they recorded in paragraph 22 of their Extended Reasons:

"… However accepting that those were the reasons for the decision to dismiss we would then ask was it reasonable to treat those reasons as a ground for dismissal. As to capability in the sense that it was alleged that the Applicant was not doing her job properly. There is no evidence that failures had been brought to her attention, that she had had guidance or training in the way in which she should carry out her duties. There was no evidence of specific failures in the way in which she carried out her duties, and no evidence that she had been warned that continued failure to carry out her duties may lead to her dismissal. The Respondent did not provide the Applicant with details of her perceived failures nor did they allow her an opportunity to deal with them and put her side of the story. The two e-mails of 2 nd March from Mr Crawford one to the Applicant and one to all staff and indeed her letter of dismissal clearly show the approach that the Respondents took to the Applicant's health problems. On the face of it inconsistent with a right to six months sick pay. Although the Tribunal accepts that such a clause does not prevent the employer from terminating the contract before the right to sick pay expires. The Respondents did not carry out any proper investigation into the Applicant's health position to see how it was that they could assist the Applicant to return to work, and how not to exacerbate her health problems. They sought no prognosis from the Applicant's medical adviser as to how long the illness was likely to last or what it was they could do to assist the Applicant to recovery. It was not reasonable for the Respondent to behave in the way in which they did. Furthermore the decision to dismiss was out with the band of reasonable responses."

Consequently the Tribunal determined that the Applicant had been unfairly dismissed for all of the above reasons. In other words, objectively it was not a reasonable course to take to dismiss her in the circumstances known to the employer, and the lack of any proper investigation also made the decision to dismiss unreasonable on procedural grounds.

[13]The Tribunal then proceeded to make an award for compensation which they assessed on the basis of 9 months continuing loss of employment by reference to a monthly figure of £2,500 odd, making a total in all of some £42,000 awarded. They concluded in paragraph 29, dealing with the question of the costs of the proceedings, as follows:

"The Respondents defence was misconceived. Their conduct of the case unreasonable. We assess the Applicant's cost at £5000 plus VAT. The Applicant had prepared and presented to the Tribunal an assessment and breakdown of how the costs claimed were made up. The Applicant sought for an order for costs in sum of £6873.75, the Tribunal were only prepared to assess costs in the sum of £5000 plus VAT i.e. £5875."

Their references to the Respondent's defence being "misconceived" and their conduct unreasonable echoed (1) the determination recorded on the first page of their decision on page 16 of the Appeal file, (2) the findings recorded in paragraph 14 of the Extended Reasons dealing with the way in which the proceedings had been conducted on their behalf and in particular the decision not to attend at all on the date fixed for the hearing, and (3) the reasons given in paragraph 22 for why their defence to the proceedings was not thought acceptable by the Tribunal.

[14]Mr Mooney argued before us simply that the decision to proceed at all in the circumstances which faced the Tribunal on the morning of 7 August 2001 was perverse. He emphasised, despite acknowledging that at least 4 applications for postponements had previously been considered and determined by the Tribunal on their merits, the very short notice and the considerable speed with which these proceedings had been brought on for hearing. Although he did acknowledge that some 21 days, rather than the minimum 14 days, notice of the hearing date had been given, he submitted that the explanation put forward for the repeated requests for postponement in order that Mr Crawford should not have to interrupt his holiday arrangements was a reasonable one in the circumstances and ought to have been accepted. Indeed, he submitted, as he had to in order to allege an error of law, that no reasonable Tribunal could in these circumstances have rejected the application for postponement as it was made, and in the circumstances put before the Tribunal, on 7 August 2001. He also submitted that a factor that ought to be taken into account was that the Tribunal Chairman, Mr Warren, before whom the case came with two colleagues on 7 August 2001, was the same Chairman as had been dealing with the procedural aspects of the case up until that time; and had himself considered and dealt with the previous applications for postponement, despite a critical letter that he, Mr Mooney, had sent to the Regional Chairman asking that another Chairman should review the procedural decisions given and that Mr Warren himself should not sit on the substantive hearing of the case. Mr Mooney submitted that Mr Warren being present at the Full Hearing of the proceedings at all in those circumstances made the decision to proceed an unreasonable one.

[15]Finally Mr Mooney said that the net result of what had happened was that Silver Fund had been deprived of a proper chance of being represented and making out its case on the merits at the Tribunal hearing on 7 August 2001. In particular, he re-emphasised the ground put before the Tribunal and quoted in the Extended Reasons at paragraph 6 that Mr Crawford, the principal director of Silver Fund was a necessary and key witness in the presentation of their case.

[16]However, when we identified, with him, in the light of the Tribunal's findings and references to the e-mails and letter of dismissal, that a principal reason which had led the Tribunal to reach the conclusion that the dismissal was unfair was the failure to afford any opportunity for Miss James to make representations, or indeed to give her any inkling that her employment might be at risk as early as March and April 2001, he did have to acknowledge that it was noteworthy that the salient allegations of fact in paragraphs 21 and 23 of the Respondent's answer did not provide any ground for any contrary conclusion by the Tribunal.

[17]He also acknowledged that in any event, it does not appear to have been the case that the application for postponement was at any stage put before the Tribunal on a basis demonstrating that Mr Crawford was in fact unable to return from his holiday and attend; or that the preparation of the Respondent's case or the calling of other witnesses, including Mr James who according to the Notice of Appearance had himself been personally involved in the matters in dispute, could not be got on with because Mr Crawford's holiday had been arranged for the one week period covering the hearing itself.

[18]On balance, having heard all that Mr Mooney has had to say, we have concluded that the grounds put forward for appealing against the procedural decision of this Tribunal are not sufficiently arguable to warrant our directing a Full Hearing of this appeal. The right course for us, having heard detailed argument from Mr Mooney over a considerable period of time today, is now to dismiss the appeal.

[19]We remind ourselves that the principles we have to apply are that the conduct of proceedings before an Employment Tribunal is a matter for the discretion and judgment of the Tribunal itself. It is not for the Appeal Tribunal to interfere by way of appeal in the decisions taken on such matters unless an error of law is demonstrated. In this particular context the heavy burden that would have to be discharged if this appeal were to have any hope of succeeding is that it would have to be shown that no reasonable Tribunal could have proceeded with the case in the way this Tribunal did, faced with the attempt by Mr Mooney's firm, on behalf of the Respondents, to force it into finally granting the postponement which had been considered and refused on, at any rate, four occasions already.

[20]The sole ground put before the Tribunal, in the application actually made to it on 7 August with which we are principally concerned, was that Mr Crawford would be on holiday and was unwilling, or would find it inconvenient, to attend on that date. In fact it transpired that he was on holiday only in the Isle of Wight, although Mr Mooney emphasised to us that for personal reasons it would have been extremely inconvenient for him to have made the effort to attend on the day of the hearing, which was during Cowes week. Nevertheless, nothing that has been put before us, and certainly nothing that was put before the Tribunal, demonstrates any arguable case that Mr Mooney was actually unable to attend, or that it had been impossible for the Respondent's case to be properly prepared and ready for the hearing on 7 August 2001, as the Applicant's case was.

[21]Secondly, it is apparent from the Tribunal's findings, and Mr Mooney did not dispute this, that in fact no preparation in any significant degree had been done for the hearing on behalf of Silver Fund at all. No attempt had been made to produce before the Tribunal evidence in some alternative form which, although not so satisfactory as the personal attendance of Mr Crawford, would at any rate have gone some way towards putting before the Tribunal the contentions on the facts it is said the actions of the Tribunal deprived Silver Fund of putting altogether. That, in our judgment, is a material factor in the context of the clear rejection of repeated applications for adjournment on similar grounds and goes materially to the question of whether the Tribunal did deprive Silver Fund of the opportunity, and we stress the word 'opportunity', of a fair hearing of their case. In our judgment, no reasonable and competent person in the position of Silver Fund and their advisers could have assumed other than that the hearing would be going ahead on 7 August, and that in their own interests the only wise course was to get on and prepare for it. We are not by any means satisfied that it was made impossible by the actions of the Tribunal for them to put forward the case properly.

[22]Instead, when the case came on for hearing in accordance with the consistent previous directions of the Tribunal on 7 August, what happened was that Silver Fund and/or their advisers had deliberately made the choice that they would not turn up to conduct the case at all. That was obviously done with a view to forcing the Tribunal's hand and reverse the rejection of the earlier applications for adjournment. Whether it was Silver Fund or their advisers who were responsible for the decision, the effect was to put Silver Fund in contumelious disregard of the Tribunal's express directions. It was not a reasonable or responsible way for their case to be conducted. Again, as we have indicated, it is a matter for the discretion of the Tribunal how to proceed when Respondents behave towards the Tribunal in such a way. We are satisfied that the Tribunal were justified in deciding to go ahead – we emphasise it was the decision of the full Tribunal of three people, not of the Chairman alone – and their reasons have been, in our judgment, adequately and fully explained in the statement of Extended Reasons. We also note the Chairman's comments on the allegations in the Notice of Appeal which have been obtained and placed before us: pages 11-15 of the Appeal file.

[23]We have considered whether the effect of what the Tribunal did was unduly harsh towards Silver Fund, even discounting the fact that the way they behaved towards the Tribunal was unacceptable. We have concluded that that is not arguable. This is a matter of discretion and we do not think there is justification here for the Appeal Tribunal to interfere with the substance of the decision of the Tribunal below, namely that in justice to the Applicant the hearing should proceed in the absence of a satisfactory explanation for why the Respondents were not attending to make out their case at all.

[24]Mr Mooney put forward further general arguments suggesting that the effect had been a breach of natural justice and/or of the right to a fair hearing under

Article 6 of the Convention

on Human Rights . In our judgment, like the principles of natural justice, what Article 6 enshrines in this context is the opportunity of a fair hearing. We have not been persuaded that anything done by this Tribunal deprived Silver Fund of a reasonable opportunity to attend and put forward their case. It was their own actions and/or those of their advisers which resulted in their not being present in front of the Tribunal in order to put forward whatever case they chose.

[25]Accordingly, the only ground in the Notice of Appeal against the Tribunal's decision to refuse a further postponement and proceed with the hearing on 7 August 2001 is dismissed.

[26]In the course of discussion at the Appeal hearing before us two further possibilities were mentioned and, in the course of that discussion, Mr Mooney made an informal application to add either or both to his Notice of Appeal. The first possibility was whether it might be said the Tribunal had erred in proceeding to determine questions of quantum at the same hearing as the principal issues of liability, without giving Silver Fund at least an opportunity of considering the figures put before the Tribunal at the hearing itself on which the award was based. The second was whether it might be said the Tribunal had erred in proceeding to consider and make an immediate order on costs at the hearing itself, again, without giving an opportunity for representations on behalf of Silver Fund as to why such an order for costs should not be made. No contention was however advanced that the actual awards for compensation and/or costs were unreasonable.

[27]On balance we have not been persuaded that it is right to exercise our discretion to allow either of those amendments or to direct that those points should be taken forward to a Full Hearing. In the first place, they were not actually raised by the Appellants themselves. They were not in their Notice of Appeal or initially raised in Mr Mooney's argument. But having considered them we have not been satisfied that either is a sufficiently arguable point to warrant directing for Full Hearing in its own right. There was no question in this case of the hearing having been directed to be a Preliminary Hearing on liability issues only. In that context Silver Fund and their advisers should have been well aware that the Tribunal could proceed to deal with the entire case at the effective hearing on 7 August. We have not therefore been able to conclude that there was any material error on the part of the Tribunal that would separate out the question of whether it was right to go ahead on the calculation of compensation from the main question of whether it was right to go ahead with the case at all.

[28]Similarly as regards the making of an immediate order for costs, again, that is a matter for the discretion of the Tribunal itself under Rule 14 of the Employment Tribunal's Procedure Regulations 2001. It is not a requirement of that Rule, as it is in relation to some other potential exercises of the Tribunal's discretion, that a specific opportunity to show cause at some separate time should be offered before an order is made. Again, that, in our judgment, comes within the general principle that the matter is one for the Tribunal's discretion, if Respondent's and their advisers deliberately choose not to attend before the Tribunal at all, and the proceedings nevertheless go ahead because last minute written applications for everything to be postponed are not accepted.

[29]Accordingly, we do not allow either of those amendments to be added to the Notice of Appeal and we therefore unanimously dismiss the appeal in its entirety. [Leave to appeal to the Court of Appeal was refused.]