MR D LOFTUS v MR S M LUNN [2002] UKEAT 781_02_0811

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 781_02_0811

Case No Appeal No. EAT/781/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D LOFTUSAPPELLANT

MR S M LUNNRESPONDENT

Before

His Honour Judge J Burke

Date 8 November 2002

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT JUDGE J BURKE QC: This is an appeal by Mr Loftus against the decision of the Employment Tribunal sitting at Leeds, chaired by Mr Brown and sent with extended reasons to the parties on 7 December 2001. By that decision the Tribunal rejected Mr Loftus' application for a review. Mr Loftus has not appeared before us today. We have not had any explanation of his absence. He has been provided with notice of this hearing and, having regard to the history of this case, we have no doubt that the correct and just course, as between these parties, is to proceed with this preliminary hearing of his appeal in his absence.

[2]The history of this matter is not entirely straightforward. Mr Loftus employed the employee, Mr Lunn, as a chef. He dismissed him on 11 June 2000, summarily. At that stage Mr Lunn had not been employed for twelve months. Mr Lunn presented an application to the Tribunal claiming that he had been wrongfully dismissed, that he was entitled to one week's pay in lieu of notice and that he was entitled to eight days holiday pay. His total claim was for the sum of £650.

[3]In his Notice of Appearance Mr Loftus set out in great detail the troubles which he said he had experienced with Mr Lunn. It was perfectly clear from his Notice of Appearance that his case was that he had dismissed Mr Lunn for misconduct and that he was entirely justified in doing so. In some form it appears that he made a counter-claim against Mr Lunn. The Tribunal first listed the dispute between Mr Lunn and Mr Loftus for hearing on 2 May. Plainly Mr Loftus had notice of that hearing. He did not attend but that was because his son was ill; and the Tribunal accepted that the hearing had to be postponed as a result. The Tribunal indicated that it was, by then, almost a year after the events which gave rise to the claims and counter-claims of the parties and pointed out that matters could not be allowed to drift on indefinitely.

[4]On 12 May the Tribunal gave notice of a new hearing date to the parties. That new hearing date was to be 5 July. On 5 July the Applicant, Mr Lunn, attended with his father to represent him but Mr Loftus did not attend. The Tribunal, in summary reasons sent to the parties on 24 July, recorded that notice of the hearing had been sent to Mr Loftus' home address. They decided to proceed in his absence in view of the length of time that the case had been proceeding. They heard evidence from Mr Lunn, concluded that he had not committed gross misconduct and was not in breach of his employment contract and awarded him the sums which he claimed and dismissed the counter-claim on the basis that it was not substantiated.

[5]That decision was sent to Mr Loftus and, in a letter of 6 August 2001 addressed to the Chairman, he expressed his surprise that the Tribunal had gone ahead without him or his witnesses in attendance and indicated that he would have challenged Mr Lunn's version of the facts and would have convinced the Tribunal of the validity of Mr Lunn's dismissal. He said that he had not received, at his address, any correspondence relating to the re-fixed date. He speculated that the notification of the hearing date might have been sent to his previous address at "The Brown Cow" and pointed out that the envelope which sent him the decision made at the substantive hearing was initially addressed to "The Brown Cow" but had a replacement label over that address with his correct address on it. It is to be noted that the Tribunal did get the decision to him and got it to him at the right address.

[6]Mr Loftus went on to say that the Tribunal should have known about his change of address and he wanted the opportunity at a renewed hearing to prove his case and to disprove that of Mr Lunn. The Tribunal sent a copy of that letter to Mr Lunn who hotly contested what Mr Loftus had said and, in particular, hotly contested that the Tribunal could have sent the notice of the hearing to the wrong address and that Mr Loftus had not had it.

[7]In the light of that, the Tribunal directed that there should be a hearing between the parties before a full Tribunal of the application for a review. Notice of that hearing date was given to Mr Loftus. The hearing date was 21 November 2001 and it was as a result of that hearing that the Tribunal reached the decision which is now the subject of appeal.

[8]Mr Loftus again did not attend. The Tribunal, in their extended reasons for rejecting his application for a review, recorded that, at about 4 o'clock on the previous evening, 20 November, Mr Loftus had phoned the Tribunal from his office in Bradford to advise that he might not be able to attend the hearing, owing to gout from which he suffered from time to time. He had said, apparently, that he would do his utmost to try to attend the hearing but if he was unable to drive, due to the pain he was suffering, he would not do so. The Tribunal asked him to confirm that message in writing. He did so by fax at approximately 4 o'clock on that afternoon.

[9]The Tribunal then left a telephone message on his answer-phone requiring him to provide medical evidence if he was unable to attend the hearing and to ring the Tribunal on the next day if he was not able to attend. No medical evidence was produced; nothing more was heard from Mr Loftus. He did not attend and the Tribunal again had to consider what to do in his absence. The Tribunal proceeded to consider the contents of his letter of 6 August in which, in effect, he had applied for a review and Mr Lunn's letter in response to that. They were right to consider those matters and would have been wrong had they not; but they did consider them and concluded that, because the explanations given in the letter of 6 August by Mr Loftus for his non-appearance at the substantive hearing were themselves unsubstantiated and were strongly contested by Mr Lunn, and in view of the delays which had already happened and can be seen plainly to have happened from the history, as we have set it out, it was in the interests of justice that the application for review should be dismissed.

[10]Mr Lunn in his Notice of Appeal says this:

"The Tribunal were faxed of my possible and probable absence due to a severe attack of gout. I was immediately driven home and did not receive any messages on my answer phone for several days. One of the messages was from the Tribunal asking for a doctor's statement that I had suffered an attack of gout. I do not need to see a doctor as I am and have been supplied with medication for just such attacks which can go on for weeks sometimes."

He goes on to say that he has a counter-claim which he wants to pursue vigorously but he has been unjustly prevented from doing so.

[11]We complete the history by repeating that Mr Loftus has not appeared before us today and we have had no explanation from him of his absence; attempts to communicate with him have failed.

[12]In our judgment the Notice of Appeal sets out no arguable ground of appeal against the Tribunal's refusal of Mr Loftus's application for a review. Mr Loftus had apparently told the Tribunal on the previous night that he might, or might not, be able to attend at the hearing because of his gout and that if pain prevented him from driving he would not attend. Quite why pain would prevent him from getting a taxi, using public transport or asking somebody to give him a lift, it is difficult to understand. If he was so ill that he could not, in some form or another, get to the hearing or attend the hearing, then any reasonable and sensible man would have appreciated that he must substantiate that with medical evidence to the Tribunal. No person in the position of Mr Loftus could reasonably have thought that it was possible just to say to the Tribunal casually "Well I'm not well and I'm not coming" which is in effect what Mr Loftus said, except that he said "I'm not well and I may not be coming".

[13]The Tribunal, in our judgment, were wholly entitled to proceed as they did. They did take into consideration the grounds which he had put forward as the grounds for a review; they were correct to do so; they were correct to take the view or at least were entitled to take the view that in the absence of Mr Loftus those grounds were not made out and thus there were no grounds upon which a review could be granted. Our judgment is that the decision of the Tribunal to refuse a review was one which they were wholly entitled to make and against which there are no arguable grounds of appeal. For those reasons this appeal is dismissed.