MRS O OBASA v LONDON BOROUGH OF ISLINGTON [2002] UKEAT 1350_01_2405
[1]APPEARANCES For the Appellant MR P J MICHELL Appearing under the Employment Law Appeal Advice Scheme MISS RECORDER E SLADE QC This is the Preliminary Hearing of an appeal by Mrs Obasa against two orders made on two different occasions by an Employment Tribunal. The first order was that she pay a sum of £1,000 for costs which arose as a result of an aborted hearing when her case was listed for hearing and she had failed to appear, although a representative was there on her behalf. The Employment Tribunal on that occasion concluded that she had been guilty of unreasonable conduct in circumstances in which she knew of the hearing date but had gone on holiday and had not returned for the hearing. The sum of £1,000 was ordered, without, it seems, any enquiry as to her ability to pay that amount.[2]On that occasion the Tribunal also made an order that she show cause as to why her claim should not be struck out for want of prosecution pursuant to Rule 15(2)(e)of the Employment Tribunal Rules . The order was made that she show cause within fourteen days. Mrs Obasa complied with that request. On 13 September 2001 she wrote a letter to the Employment Tribunal apologising for her absence and explaining the circumstances of her non-attendance. She is a lady who suffers from a disability (sickle cell condition). She explained the circumstances in which she was away on holiday on the date of the hearing and also her instructions given to her then solicitors. The Employment Tribunal reconvened. They considered the letter which she had written and concluded that the reason she had given for her non-attendance was quite unsatisfactory and insufficient to constitute good cause for avoiding the strike out order. The Tribunal accordingly struck out the Originating Application for want of prosecution.[3]Mrs Obasa has been assisted in the Preliminary Hearing before us by Mr Michell, who appears under the ELAAS Scheme, and we are indebted to him for his clear and succinct submissions.[4]So far as the costs order is concerned, in our judgment it is arguable that an order in the amount of £1,000 should not have been made without some enquiry as to the Applicant's ability to pay. It is no doubt possible for Tribunals to make such orders without enquiry when the party had an obvious ability to pay. This was not such a case. Further, although less clearly in our view, it is just arguable that the costs order should not have been made on the first occasion without giving the Applicant herself an opportunity to show cause as to why that order should not be made. We say that that ground of appeal, in our view, is slightly less arguable by reason of the fact that she was represented at the hearing.[5]Turning now to the decision to strike out her Originating Application for want of prosecution. In our view it is arguable that the decision taken by the Tribunal to strike out this claim for want of prosecution was perverse on the material before it, namely the letter which had been written and the history of these proceedings. Accordingly, we give permission for this appeal to proceed on the basis outlined in this judgment.