AGE OF ELEGANCE v MRS V HAMMOND [2007] UKEAT 0188_07_1807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0188_07_1807Case No Appeal No. EAT/0188/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AGE OF ELEGANCEAPPELLANTMRS V HAMMONDRESPONDENT
Before
Mr Recorder PlenderDate 18 July 2007
[1]APPEARANCES For the Appellant Neither present nor represented For the Respondent (Debarred) Neither present nor represented SUMMARY PRACTICE AND PROCEDRUE Postponement or stay Appellant employer appealed against refused application for deferral of hearing, owing to sickness of employer. Application for deferral of hearing made late. Chairman of tribunal refused postponement adapting Respondents reasoning. No reason why wife of employer could not attend and delay would cause hardship to Respondent. Directions of that hearing, in absence of Appellant, appeal dismissed. MR RECOREDER PLENDER QC In the absence of any representation for the Appellant and any communication from the Appellant this appeal is dismissed.[2]In this case Mr and Mrs Feeley, trading as The Age of Elegance, appeal against the decision dated 30 March 2007 of the Employment Tribunal, refusing the application that they made on 26 March 2007 for a deferral of the hearing on Monday 2 April, of a claim for damages made by Mrs Victoria Hammond, who alleged constructive dismissal and sex discrimination by Mr and Mrs Feeley.[3]By way of background only I set out the essence of Mrs Hammond's complaint. Mrs Hammond states that she was employed by The Age of Elegance in March 2005 as an Assistant Manager. She says that she was promoted to Manager, a claim denied by Mr Feeley, and it all went well until she told Mr and Mrs Feeley that she was pregnant. She says that she took leave from June 2006, that Mr Feeley did not pay her the statutory maternity pay to which she was entitled, and that she complained formally in July and in October 2006 without obtaining redress. In these circumstances she says she felt she had no choice but to resign and not to return from maternity leave.[4]The application for an adjournment was made by Mrs Feeley on the ground that her husband had been admitted to hospital on 28 February with a suspected stroke and stress-related exhaustion. He had not yet fully recovered and remained under continuing investigation at Salisbury Hospital. He was expected to be released from hospital briefly, but was readmitted on 9 May for MRI head scans. Mrs Feeley proposed that a new hearing should be fixed for a date after her husband's release from hospital.[5]This application was opposed by email, dated 30 March 2007, sent by Mrs Gillian Manning of Capita Insurance Services, who apparently represents Mrs Hammond. Via the email Ms Manning stated in part:
"I wish to object to a postponement on the following grounds: 1. I see no reason why Mrs Feeley cannot attend the hearing in her husband's place. 2. I have sent the bundle and the Claimant's witness statement to the address on ET3 by special delivery to arrive before 12.00 pm today. Mrs Feeley will therefore have the whole weekend to go through the documentation and to prepare her case. 3. I am leaving Capita on the 31st May and do not expect that a replacement with supervisor status will be recruited in the Gloucester office. It is therefore highly unlikely that anyone else would be able to represent her (that is Mrs Hammond)."
[6]In refusing the application for adjournment, the Chairman of the Employment Tribunal, Mr C G Cuba, adopted the reasons given in the statement by Gillian Manning. In response to that decision, Mr Feeley argued that the Employment Tribunal erred in having regard to the availability of Ms Manning, who contended that a company with resources of Capita might well have been able to provide Mrs Hammond with representation. Furthermore, he argued that the Employment Tribunal erred in concluding that the Respondent could adequately be represented by Mrs Feeley in the absence of a witness statement that would enable the Employment Tribunal to determine how important the witness Mr Feeley might be.[7]Like HHJ Serota, I consider these submissions to be fairly arguable. But although the Court was convened today to hear argument on those points, no representations of any kind has been made on behalf of the Appellant, and the Appellant has not appeared either in person or through a representative.[8]The principal point on which I had hoped to hear from the Appellant was whether there is, contrary to the Chairman's findings, a reason why Mrs Feeley cannot attend the hearing in her husband's place. It was open to Mr Feeley to give evidence of the contribution that he could make, or for some other person to explain why Mrs Feeley could not deal with the hearing in her husband's place, but on that point there is only silence. The Chairman said, quoting the language of Gillian Manning, that, "It is highly unlikely that anyone else will be able to represent Mrs Hammond." It was open to Mr Feeley, either in person or by representative, to argue that somebody else would be able to represent Mrs Hammond, but we have not heard anything from him today on that point.[9]I do not ignore the written statement in which he points out that Capita is a large organisation and there are members of staff in it other than Gillian Manning. Whether Capita are prepared to represent Mrs Hammond, or have staff available of the appropriate standing in the appropriate office, is a matter on which we have simply heard nothing. By virtue of the absence today of Mr or Mrs Feeley, or any representative of Mr or Mrs Feeley, I am unable to reach conclusions in their favour, although I would have been very much open to reach a judgment on the basis of submissions on these points. As no submissions have been made I am obliged to dismiss this appeal.