SNOWY’S LIMITED T/A SNOWY’S AUTOBODY REPAIR SPECIALISTS v MR M COOK [2007] UKEAT 0595_06_0703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0595_06_0703Case No Appeal No. UKEAT/0595/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SNOWY’S LIMITED T/A SNOWY’S AUTOBODY REPAIR SPECIALISTSAPPELLANTMR M COOKRESPONDENT
Before
His Honour Judge McMullenDate 7 March 2007
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Practice and Procedure – Postponement or stay There was no error of law in the Employment Tribunal's decision to confirm the previous decision of a regional chairman to refuse the Respondent's application to postpone the hearing for a third time. It was within its discretion to hold that the Respondent had produced no medical evidence to support his contention that he was unfit to attend. HIS HONOUR JUDGE McMULLEN QC This case is a challenge to a judgment of an Employment Tribunal which decided to conduct a hearing in the absence of the Respondent's representative, Mr Farrell, who was a director. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent. Introduction[2]This is an appeal by the Respondent in those proceedings against the judgment of an Employment Tribunal sitting at Bristol on 31 August 2006, chairman Mr C G Toomer. The Claimant attended in person. The Respondent did not attend and was not represented. The Claimant made a number of claims, all of which succeeded before the Employment Tribunal. Not relevant to our proceedings is the detail of the awards made in the Claimant's favour which amounted to £6,764.75. It included compensation for unfair dismissal on the ground of whistleblowing and statutory uplifts for the Respondent's failure to comply with the regime set out by the Employment Act 2002 and regulations. It is not therefore necessary to look at the substantive issues determined by the Tribunal but simply at the procedural issue which is whether or not the case should have gone ahead in the absence of Mr Farrell.[3]The Tribunal decided that it would go ahead and the Respondent appeals. Directions sending this appeal to a full hearing were given in chambers by Elias P. He marked it Category B and listed it for a day. We have searched carefully for any legal ground in this case but have to say at this stage that we find none. The legislation[4]The legislation relating to the power of a Tribunal to control its own procedure is contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Extensive powers of case management are given to it and it has the power to postpone a hearing. The facts[5]The facts relevant to the issue before us are:
"3. The claimant has appeared before us in person. The respondent is not represented. The position is that a director of the respondent, Mr Farrell, has made various applications for postponement of these proceedings on the basis of his ill health. An earlier application for postponement was granted. The most recent application for a postponement, however, was made yesterday and the Regional Chairman refused it on the basis that there was no medical evidence that Mr Farrell was unfit to attend the hearing, as opposed to being unfit to attend his place of work. 4. Mr Farrell has not attended today and neither has anybody else on behalf of the respondent. Efforts were made at our direction to contact the respondent by telephone. The company secretary, who we are given to understand is Mrs Farrell, said that Mr Farrell was unavailable. We attempted to contact him by telephoning his mobile telephone number but the mobile 'phone was switched off. We did, however, receive a fax from the respondent this morning complaining of the refusal of the postponement. Having considered all these circumstances we unanimously concluded that it was just and equitable that the claim should go ahead this morning and we have treated the bundle of documents and witness statement which Mr Farrell has submitted on behalf of the company, together the company's response, as its written representations and we have taken the contents into account."
[6]The medical material available to the Tribunal was a doctor's note signed on 30 August 2006 indicating that Mr Farrell should refrain from work for two weeks. The diagnosis was what we think is post-hernia repair. This relates to what Mr Farrell says in his supporting letter by way of an application for a review, that he had undergone surgery in June 2006 for a hernia, which has resulted in some complications.[7]An application for a review was made to the Tribunal by a letter of 13 September 2006 which plainly indicated legal advice. The history of the postponements is set out by Mr Farrell and this appears to us to indicate that hearings had been scheduled on 7 and 31 July 2006, both of which were postponed at Mr Farrell's request. On 30 August 2000 a further request for a postponement of the hearing scheduled for the following day was made to the Tribunal and rejected by the regional chairman, Mr Tickle. Technically, there ought to have been an appeal against that but since Mr Farrell is not here today we will take no point against him about this because in any event the whole basis of the postponement was the subject of a judgment and reflection by a three-person Tribunal, as recorded in its judgment.[8]The application for a review was rejected by Mr Toomer who said the following:
"…your application for a review of the Judgment is refused. The application for a postponement, which was received very late, was refused by the Regional chairman for reasons which were clearly explained. Even now, there is no medical evidence that Mr Farrell was unfit to attend a tribunal hearing, which is not the same thing as being unfit to attend work. The Chairman's view is that this application for a review has no reasonable prospect of success and is refused for that reason."
The matter then went to appeal. The notice of appeal is accompanied by four witness statements, one from Mr Farrell which deals with the substance of the dispute between himself and the Claimant and is signed on 14 September 2006. We take it that that is, in substance, the witness statement which the Tribunal itself had in front of it at the hearing on 31 August. Also accompanying the notice of appeal are witness statements from co-workers in Mr Farrell's business. The business is one of auto repair and at the relevant time, as well as Mr Farrell and Mr Cook, it appeared to engage these three other body repair workers and possibly one other. All these witness statements are dated in October 2006 and therefore should have been the subject of an application for permission to adduce new evidence.[9]We do not know whether these three witnesses were warned to attend the Employment Tribunal hearing. At least the Tribunal was alert to that possibility, because it indicated that no-one attended for the Respondent and thus it seemed to have been a fait accompli in the eyes of Mr Farrell that if he was unable to attend the hearing would not go ahead, notwithstanding the possibility that there might have been three other witnesses of fact.[10]The appeal itself does not descend into a critique of the substantive reasons given by the Employment Tribunal but simply rehearses the complaint first that Mr Tickle and then the three-person Tribunal refused to allow a postponement of the hearing. Conclusions[11]We see no error of law in the Tribunal's approach. It considered the application itself and, in our judgment, made a correct distinction between a doctor's certificate which says that a person is unfit to attend his or her workplace on the one hand and, on the other, one which requires consideration of whether that person can attend an Employment Tribunal, see the distinction recently put before a single Lord Justice on an application for permission to appeal in the case of Bertolin v Thornbury Estates Ltd where Sedley LJ was dealing with exactly such a matter. Thus, that examination as a matter of fact is not one that we consider to have been made incorrectly. The exercise is one both of case management and of discretion to decide whether it is fair, in the circumstances, to conduct a hearing in the absence of a Respondent who will, as occurred in this case, be likely to be exposed to liability.[12]The Tribunal considered the medical evidence, such as it was, and it has to be said that there has been no further medical evidence. It was open to the Employment Tribunal to accept this, but on the other hand it cannot be said that it erred in law when it did not accept it as a valid reason to put off, for what would then be a third time, the Claimant's access to the justice seat for his valid claims. The reasons are set out by the Employment Tribunal and we see no reason to dispute them.[13]We should just say a word about the procedure today. The case has been called on; Mr Farrell has not attended, nor has the Claimant. Orders were made both by Elias P and by the Registrar requiring compliance by Mr Farrell with orders made for the preparation of this case, and on every occasion he has failed to comply with the orders. There are at least four. He has, however, not been struck out and EAT case managers have prepared the papers for this hearing, notwithstanding the conspicuous failure by Mr Farrell to comply with the President's orders and those subsequently made by the Registrar.[14]Against that background we consider that the Tribunal may well have formed the view that there was no substantial reason for refusing a remedy to Mr Cook in the light of what limited material it had available to it from Mr Farrell. Having fully considered everything that Mr Farrell has put before us, we are firmly of the view that this case has no merit whatsoever and should be dismissed.