MS A SOBO v CENTREPOINT SOHO [2003] UKEAT 0914_02_0603

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0914_02_0603

Case No Appeal No. EAT/0914/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS A SOBOAPPELLANT

CENTREPOINT SOHORESPONDENT

Before

Mr Justice Keith Mr B V Fitzgerald Mr D A C Lambert

Date 6 March 2003

[1]APPEARANCES For the Appellant MR W D PANTON (of Counsel) Instructed by: Messrs O S Johnson Solicitors 125a Lower Addiscombe Road Croydon Surrey CR0 6PU For the Respondent MR R ALDER (Representative/Solicitor) Instructed by: Messrs Trowers & Hamlins Solicitors Sceptre Court 40 Tower Hill London EC3N 4DX THE HONOURABLE MR JUSTICE KEITH On 15 January 2002 the Applicant presented a complaint to the Employment Tribunal. Her complaint was completely unparticularised, but she was alleging "breach of contract, unfair dismissal and unlawful deduction of wages". On 19 February 2002 the regional office of the Employment Tribunal notified the parties that the hearing of the Applicant's complaint would take place on 29 April 2002. On that date neither the Applicant nor her representative attended the hearing, and an Employment Tribunal held at London (South) struck out the Originating Application and ordered the Applicant to pay the Respondent's costs in the sum of £1,500 plus VAT. The Applicant now appeals against that order.

[2]The circumstances giving rise to the non-appearance of the Applicant or her representative at the hearing on 29 April were these. On 8 April her solicitors wrote to the Tribunal informing it that the Applicant was due to be operated on in or about the second week of April, and that she would not be able to attend the hearing. The letter did not actually ask for the hearing to be postponed, but it did say that they would revert to the Tribunal when they had information about the Applicant's condition. On 17 April they wrote again to the Tribunal, informing it that the Applicant's operation would take place on 26 April, and undertaking to provide the Tribunal with documentary evidence confirming the operation when that documentary evidence was available. Again, no express request was made for the hearing to be postponed, but the Tribunal rightly treated the letters as a request for the postponement of the hearing, and on 23 April it wrote to the Applicant's solicitors informing them that the request had been placed before a Tribunal Chairman who had decided that the case would remain in the list "until we get the concrete information", which we take to have meant until the Tribunal received documentary confirmation that the Applicant's operation would be taking place on 26 April.

[3]On 24 April the Applicant's solicitors sent to the Tribunal an appointment card for a doctor in Chicago. It referred to an appointment at 8.00 a.m. on 26 April, but there was nothing on the card to indicate that it referred to the Applicant or that the appointment was for an operation, though someone, other than the person who wrote the date and time on the appointment card, had added the word "operation" next to it. This document was placed before the same Tribunal Chairman who again decided to refuse the request for a postponement of the hearing. One of the reasons he gave was that the evidence provided was insufficient to support a successful application for a postponement. While that was going on, the Respondent's solicitors were trying to agree a timetable with the Applicant's solicitors for the exchange of documents and witness statements; but the Applicant's solicitors did not engage with this exercise, no doubt because they thought that eventually the Tribunal would be satisfied that there should be a postponement of the hearing.

[4]However, by the date of the hearing itself on 29 April, the Tribunal did know that the Applicant was then in hospital. First, on 25 April the Applicant's solicitors had telephoned the Tribunal and informed it that the card did indeed refer to the Applicant, and that she was in the Mercy Hospital, Chicago; and that was followed up by a fax sent to the Tribunal on 26 April (although dated 24 April) enclosing a note from the Mercy Hospital, Chicago that the Applicant was having a caesarean section that day. Secondly, the Respondent's solicitors informed the Tribunal on the day of the hearing that they had themselves been in touch with the hospital, and that the hospital had confirmed that the Applicant had given birth by caesarean section on 26 April.

[5]Despite that, the Tribunal struck out the Originating Application. The reasons which it gave for doing so were as follows:

"The Tribunal also noted that the Respondent's solicitors had attempted to deal with the question of exchange of documents and witness statements in their fax to the Applicant's solicitors on 24 April. At this time, the Tribunal concluded that the Applicant must have known that she would never have been able to attend the Tribunal because of the birth of her child and, additionally that she would be out of the country during the time of the Tribunal. The Tribunal concludes that the fact that the Applicant did not inform the Respondent of this until just prior to the hearing was unreasonable. The Tribunal have further considered the Applicant's claim and consider that the claim was misconceived."

[6]The point is made that there was no actual application for a postponement before the Tribunal on 29 April, because the last thing which the Tribunal had heard from the Applicant's solicitors was the fax of 26 April (though dated 24 April), which read:

"Further to the above, please find enclosed correspondence confirming that our client is having an operation today. Therefore, we will not be able to attend the hearing scheduled for Monday 29 th April 2002."

However, if the Tribunal thought that there was no application for a postponement before it, we do not think that that would have been correct. The only reason why the Applicant's solicitors were saying that they would not be attending the hearing on 29 April would have been because they thought that once the Tribunal had taken on board what the fax enclosed (namely documentary evidence confirming the fact that the Applicant was having an operation for the birth of a child by caesarean section on 26 April), the postponement of the hearing would have been automatic. If, therefore, the Tribunal thought that there had been no application for a postponement before it, the Tribunal was wrong.

[7]But on the assumption that the Tribunal realised that there was an application for a postponement of the hearing, we do not think that the reasons which it gave for striking the application out justified the refusal of the postponement. The comment about what the Respondent's solicitors had been attempting to do was irrelevant to the question whether the Applicant's enforced non-attendance justified postponing the hearing. It is true that the Respondent's solicitors had never been informed about what the Applicant was going into hospital for, and had never even been provided with documentary information of the fact that she was due to go into hospital at all; but the Respondent's solicitors had been aware ever since 8 April, because they were faxed a copy of the Applicant's solicitor's letter of that date to the Tribunal, that it was being said that the Applicant would be operated on later that month, and they were therefore aware that the hearing could well be postponed if documentary evidence of that was forthcoming. Nor do we see how the Tribunal could have concluded that the Applicant's claim was misconceived when they would have known very little about it and would have had to rely on the Respondent's Notice of Appearance to find out what the case was all about.

[8]In our judgment, the only appropriate course open to the Tribunal, when it had been confirmed to it, albeit as late as 29 April, that the Applicant was still in hospital, was to postpone the hearing, especially as the Tribunal had known about that possibility since 8 April, even though the documentary confirmation of it had only been provided to the Tribunal on 26 April. If the Respondent had been put to expense as a result of the Tribunal not having postponed the hearing earlier, the Applicant could have been ordered to pay the costs of the Respondent's solicitors of attending the Tribunal on 29 April, provided that(a) the Applicant had been given a proper opportunity to argue against such an order, and that

(b) the Tribunal concluded that it had been unreasonable in the circumstances for the Applicant not to have provided the documentary confirmation of her operation, as had been sought, earlier than 26 April. But we do not think that it was reasonably open to the Tribunal to refuse the postponement of the hearing, or to strike out the claim as misconceived, or to order at that stage the Applicant to pay costs. Mr Richard Alder for the Respondent accepted that if the Tribunal is found to have erred in not postponing the hearing, there is no basis for him to argue that the Originating Application should have been struck out.

[9]For these reasons, this appeal must be allowed, the order of the Employment Tribunal must be set aside, and we order that the Applicant's complaints be heard by a differently-constituted Employment Tribunal, without prejudice to any renewed application which the Respondent may make for an order that the Applicant pays to it the costs of its solicitors attending the hearing on 29 April.