MR O F AYOVUARE v ARUP GROUP LTD [2002] UKEAT 1281_01_1005

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1281_01_1005Case No Appeal No. EAT/1281/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR O F AYOVUAREAPPELLANTARUP GROUP LTDRESPONDENT
Before
Her Honour Judge A Wakefield Mr A E R Manners Mr R ThomsonDate 10 May 2002
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE A WAKEFIELD : This is an ex parte preliminary hearing of an appeal by Mr Ayovuare against a decision on a preliminary issue of an Employment Tribunal sitting at London Central on 18 September 2001, by which his complaint of racial discrimination was dismissed and he was ordered to pay the costs of the Respondent in the sum of £2,585. The hearing was in the absence of the Appellant.[2]What occurred as to the dismissal of the claim is set out as follows, in paragraphs 2 to 4 of the Decision of the Employment Tribunal which was sent to the parties on 8 October 2002:
"2 The case was listed for a preliminary hearing on 18 September 2001 at 10 am to determine the preliminary issue of whether, having regard to the time limit contained in Section 68(1) of the Race Relations Act 1976 (three months), a Tribunal has jurisdiction to consider the Applicant's complaint of racial discrimination. 3 The notice of hearing stated that the hearing would take place at 10 am or as soon thereafter as the Tribunal could hear it. The case was listed as a floater. The Applicant attended the Tribunal offices and signed in. He spoke with Mr Scott, Counsel for the Respondent. The case was called at [11.40 am] and the Tribunal staff notified the Tribunal that the Applicant had left at 11 am. Mr Scott confirmed to the Tribunal that he had spoken to the Applicant earlier in the morning but the Applicant had told Mr Scott that the Applicant would not stay beyond 11 am. The Tribunal proceeded in the absence of the Applicant." 4 Rule 11(3) of the Employment Tribunals Rules of Procedure 2001 provides " [and they then set it out]. They go on, in paragraphs 5 and 6: "5 The Tribunal read and considered the Originating Application and Notice of Appearance and heard the submission of Mr Scott that the Tribunal should dismiss the Originating Application. 6 Having taken these matters into account it is the unanimous decision of the Tribunal to dismiss [the Applicant's] Originating Application in its entirety pursuant to the provisions of Rule 11(3) of the Employment Tribunal Rules of Procedure 2001."
[3]As to costs, an application having been made under Rule 14 of the Rules of Procedure 2001 by Counsel for the Respondent, the Employment Tribunal set out Rule 14 and then continued in their Decision as follows, in their paragraphs 9 to 11:
"9 The Tribunal considered the Respondent's schedule of costs. The Applicant had attended the hearing but had left before the case was called. The Tribunal discounted the costs of preparation but allowed the Respondent's costs of attending the hearing, four hours for the partner of the Respondent's solicitors at £300 per hour which amounts to £1,200 and Counsel's brief fee and conference fee in the sum of £1,000 which totals £2,200 plus VAT. VAT amounts to £385. 10 The Tribunal considered that the behaviour of the Applicant in leaving at 11.00 am, when the notice of hearing stated that the case would be heard as soon after 10.00 am as it could be heard, was unreasonable. The Applicant had not left any explanation either with Mr Scott or the Tribunal staff as to why he had left at 11.00 am and the Tribunal considered that conduct to be unreasonable. 11 It is the unanimous decision of the Tribunal to order that the Applicant should pay the costs of the Respondent in the sum of £2,585 pursuant to Rule 14 of the Employment Tribunal Rules of Procedure 2001."
[4]The grounds of the appeal, as stated in the Notice of Appeal before us, are that:
"The Decision was very biased, perverse, erred in law, flawed and unreasonable."
This is expanded upon in an affidavit sworn on 12 November 2001 by the Appellant, in the skeleton argument before us today and in the oral submissions of the Appellant. He sets out in paragraphs 4, 5 and 6 of his affidavit his account of the events on 18 September, the day of the hearing as follows:
"4 That when I arrived at that Employment Tribunal on the 18 th September 2001, according the notice of hearing that me received the case was listed for the Preliminary hearing at 10.00 am. However, when I arrived the Tribunal after I have reported myself to the Reception, at about 9.35 am. The Clerk to the Tribunal came to the Applicant waiting room and informed me at about 10.05 am that unfortunately, the case has been listed as floating case that mean it could only be heard when Tribunal become available. Therefore I have to wait until when Tribunal was available. As I am unemployed, I am expected by the Unemployed Office benefit's office to be reporting myself from time to time that I am available for work and that I am doing everything that I can to get employment. As it happened that day 18 th September 2001 was one of the day that I was expected to make myself available. 5 When I arrived at the Employment Tribunal at about 9.30 am there was no Tribunal and I waited until about 11.29 am that is about one hour and twenty nine minutes. There was no Tribunal, so I reported to the Tribunal's Clerk that I would like to write a note to the Chairman that I must reported back at the Job Centre that I have already waited for one hour and twenty nine minutes. However, the Clerk told me on the telephone that she was very busy and that she could not come out. So I told her on the telephone my problem then I left the Tribunal. Later on that I wrote to the Secretary of the Tribunal that I waiting to receive another notice for the Preliminary hearing as there was no Tribunal to hear the Preliminary scheduled 18 th Sept. 2001. 6 That the next information I received from the Tribunal was the Extended Reason that my application has been dismissed and cost of £2,585.00 … has been awarded against me. …"
And the Appellant then says that the preliminary hearing should have been adjourned and another date fixed. He says, in relation to the award of costs in that affidavit, the following at his paragraph 7:
"7 That the Chairman failed to take into account of my ability to pay any cost that may be awarded against me. I was not even given any opportunity to make any representation regarding any cost that may be awarded against me. This shows that the Chairman was biased, perverse, erred in law, breached my Human Right, unreasonable, abused of power, and without statutory provisional. Further, the Respondents' Representative did not fore-warned me or presented to me any cost schedule. That the Respondents' Representative did not inform me that if my application failed that his Client may ask for a cost."
[5]The Employment Tribunal Chairman has responded to that affidavit on 4 December 2001, most relevantly in our view as follows at his paragraphs 4 to 6, where he says this "4 … The Tribunal was not advised that Mr Ayovuare was going to the Jobcentre. The Tribunal became ready to hear the case at 11.40 am. We were told by the Tribunal clerk that Mr Ayovuare had left the building. No message was received as to where Mr Ayovuare was going and the file does not disclose any note that he was going to the Jobcentre. At the beginning of the hearing, Mr Scott, for the Respondent, told the Tribunal, as recorded in paragraph 3 of the Decision, that he, Mr Scott, had spoken with Mr Ayovuare earlier in the morning, but that Mr Ayovuare had told Mr Scott that he would not stay beyond 11 am. Mr Scott did not know the reason for this. The Tribunal was not advised by the Tribunal clerk the reason for Mr Ayovuare leaving at 11 am. It is normal practice in the London Central region for a number of cases to be listed as floaters or floating cases and for these to be taken by the first Tribunal that becomes available. 5 When the Tribunal called for this case at 11.40 am, the Tribunal clerk told the Tribunal that Mr Ayovuare had left at 11.00 am. The information the Tribunal had was that he left at about 11.00 am and not, as he states, at 11.29 am. It was the Tribunal's understanding, confirmed by Mr Scott of Counsel, for the Respondent, that Mr Ayovuare had left after waiting until 11 am, a period of 1 hour, after 10 am. The Chairman takes it that the reference to the letter at the bottom of paragraph 5, is to Mr Ayovuare's letter of 26 September 2001, the substance of which is quoted at paragraph 3 above. 6 Mr Ayovuare suggests that the Chairman could have adjourned the Preliminary Hearing to a later date and given a strike-out warning. The Chairman comments that this was a unanimous decision of the three members of the Tribunal. No application for postponement was made by Mr Ayovuare. Mr Ayovuare did not leave a note for the Tribunal nor, indeed, did he notify the Tribunal in advance of a need to leave early. The Tribunal was of the view that this was not a case where it was appropriate for it to consider a postponement in the light of the matters recorded at paragraph 3 of the Decision. .."[6]The issue, which was the subject of the preliminary hearing, was as to whether the Appellant had presented his complaint of racial discrimination in time. He had been rejected by the Respondent for a post as Cost Manager by a letter dated 5 March 2001. His Originating Application was presented to the Employment Tribunal on 9 July 2001.[7]Having considered all the points which have been raised by the Appellant in this appeal, we are satisfied that it is not reasonably arguable that the Employment Tribunal in dismissing the Originating Application acted perversely or in any way incorrectly in law. The Appellant has, by his own conduct on 18 September, caused the situation in which the Employment Tribunal, perfectly properly, considered the Originating Application, the Notice of Appearance and representations made by Counsel for the Respondent in the absence of the Appellant and they concluded that the complaint should be dismissed, it being on its face out of time and there being no evidence or submissions from the Appellant as to extending time.[8]As to costs, in the circumstances known to the Employment Tribunal, again brought about by the Appellant's conduct in leaving the Employment Tribunal without ensuring that an explanation as to his absence would be before any panel hearing the preliminary issue, he had acted unreasonably and there was jurisdiction to act within Rule 14 of the 2001 Rules of Procedure to make an award of costs without hearing the Appellant, either as to the principle of making such an award or as to its quantum.[9]The only issue in this appeal which we consider to be arguable and which we therefore allow to go forward to a full hearing is whether, by reason of Article 6 of the European Convention on Human Rights and the Human Rights Act 1998 , notwithstanding no such requirement in Rule 14, the Appellant should have been given the opportunity of making written representations or of having a hearing on the question whether an award of costs should, in the circumstances, be made and, if so, the amount of any such award, in particular having regard to the means of the Appellant.[10]We wish to make it clear that in allowing the appeal to go ahead on this ground only, we are not giving any indication as to our view of the merits of such an appeal. Therefore, on this matter only, the appeal goes forward to a full hearing.[11]We put the appeal in Category C, with a time estimate of two hours.