Appeal No. EAT/1343/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 September 1997

Before
HIS HONOUR JUDGE J HICKS QC
MR D J JENKINS MBE
MRS J M MATTHIAS

MR P MATHURIN	APPELLANT

THE CHILDREN'S SOCIETY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PHILIP MEAD
(of Counsel)
Messrs Tayntons
Solicitors
Clarence Chambers
8-12 Clarence Street
Gloucester 
GL1 1DZ	
For the Respondents	MR CHRISTOPHER ROW
(Head of Personnel)	

	JUDGE J HICKS QC:     The Appellant, Mr Mathurin, was employed by the Respondents, the Children’s Society, and brought a complaint before the Industrial Tribunal of unfair dismissal.  That complaint was set out in the Originating Application in a fair amount of detail and the employers also in their Notice of Appearance set out the nature of their case and the facts on which they relied.

	The hearing before the Industrial Tribunal was fixed for 3 October 1996 and both parties knew that.  On 1 October Mr Mathurin and Mr Row, the representative of the employers, had two conversations about preparation for the hearing.  At that stage Mr Mathurin, on the face of it, was ready and able to proceed to the hearing on 3 October, but on 2 October (the day before the hearing) he applied for a postponement.  That postponement was refused by the Regional Chairman, but in the Chairman’s Reasons he said:

“In view of the lateness of this application and the respondent’s objections this application is not one that I am prepared to grant today, but if the applicant is still incapacitated tomorrow he can re-apply at the hearing.”

	So, although in form a refusal, it was effectively and in substance equivalent to an adjournment of the application for a postponement which could be re-presented at the hearing.  The reference to incapacity is because the ground of the application was that the Applicant, Mr Mathurin, was suffering from laryngitis.  

	It is not disputed by or on behalf of Mr Mathurin that he, as it were, had that message.  In other words he knew not only that his application had been refused, but also that he was being told that he could renew it at the hearing on 3 October.  What happened on 3 October was that the application was called on for hearing.  The Respondents were there ready to proceed, but the Tribunal was told that Mr Mathurin had telephoned at 8.50 am that day and had spoken to a Tribunal Clerk, Mr Fears, who took the call and was told by Mr Mathurin that he was feeling no better than he had the day before and was still unable to attend.  Mr Fears told him that if he wished to make a further application to the Tribunal at the hearing, then he must put something in writing if he was unable to attend.  The Applicant said that a fax had been sent on his behalf the previous day by his brother, but he would try and send a further one from a local shop, and a fax was received at 9.36 am on 3 October 1996.  All that information was given to the Tribunal by Mr Fears, it appears not just as a report as a member of the staff but actually as evidence, because that is how the Tribunal describe it, and Mr Fears also told the Tribunal, as part of that evidence, that although it could be concluded from Mr Mathurin’s voice that he might have a slight cold there was no indication that he had any problem over speaking and the telephone conversation had lasted about four minutes.

	In those circumstances the Industrial Tribunal, having had that information and evidence and having read the written application of 3 October, the fax communication, decided to refuse the application for an adjournment, and the first issue before us is whether they were wrong in law in that decision.  What is said by Mr Mead, on behalf of the Appellant on that point, is first that the Tribunal was wrong in taking into account the conversations on 1 October 1996 in order to assess whether the Appellant was ill.  We see nothing in that ground of appeal or submission.  The Industrial Tribunal’s Reasons clearly set out what happened on the 1st as a necessary and relevant part of the history and, in our view, it was a relevant part of the history.  There is no indication whatsoever that the Tribunal took the manifestly fallacious step of saying to themselves “because he was well enough to be preparing for the trial on 1 October there cannot be anything wrong with him today on the 3rd”.  

	The second point that Mr Mead submits about the decision not to adjourn was that it was wrong for the Industrial Tribunal to place any weight on the evidence of Mr Fears because, to put it briefly, Mr Fears was not a doctor and therefore not capable of giving evidence about the nature of Mr Mathurin’s medical condition.  As we understand it Mr Fears was not doing anything of the kind, nor was the Industrial Tribunal taking his evidence as being medical evidence.  They did indeed (perfectly properly) take into account the fact that there was no medical evidence in support of the application, but the relevance of Mr Fears’ evidence on this point was simply the extent to which Mr Mathurin seemed to be able to express himself audibly and intelligibly over the telephone, and one can test whether that was a proper or improper matter to take into account by supposing that, for instance, Mr Mathurin had turned up and had renewed his application for an adjournment before the Tribunal itself.  It cannot, we believe, possibly be supposed by anybody that in those circumstances the Tribunal is disentitled to take notice of what they hear and observe of Mr Mathurin’s voice and the difficulty or otherwise he has in expressing himself.  The same would equally be true if the application had been made over the telephone to the Tribunal (as a whole) instead of their being informed of the very same facts by a witness, and we see no error on the part of the Tribunal in taking Mr Fears’ evidence into account.

	The next paragraph of Mr Mead’s Skeleton is one which he did not develop at any length before us.  It is that the Industrial Tribunal should have considered whether the Appellant was sufficiently fit to conduct his case, not just whether he was capable of expressing his application for an adjournment over the telephone.  We think Mr Mead was right not to press that point because it was quite clear from the decision of 2 October and from what Mr Mathurin knew of the matter that all that he had to do in the first instance was to appear and renew his application for an adjournment.  It would only be at that stage, if he appeared in person, that the Industrial Tribunal would have needed to go further into the question of whether his application should be granted by reference to the extent to which he could sustain a whole day’s hearing, or however long it would take.

	There is a further ground in the Skeleton Argument which refers to the lack of a medical certificate, but there is nothing in that point and it was not advanced by Mr Mead before us.

	We therefore see no error of law or perversity in the decision of the Industrial Tribunal to reject the application for an adjournment.  

	The Industrial Tribunal then had to consider its powers under rule 9, sub-rule 3 of the Industrial Tribunal’s Regulations 1993, which provides that:

“If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, [which was the case here] dismiss or, in any case, [that must mean whether the party absent is applicant or respondent] dispose of the application in the absence of that party or may adjourn [we have dealt with adjournment].”

	There is a proviso that, before dismissing or disposing of any application in the absence of a party, the Tribunal shall consider his Originating Application or Notice of Appearance and certain other matters which did not arise here.  The way in which the Industrial Tribunal dealt with that was as follows.  They said in paragraph 8 of their Reasons:

“8.  We then went on to consider the dismissal or disposal of the application.” 

In the context it is perfectly clear that they mean “we then went on to consider how we should deal with the matter under rule 9(3), that is to say whether to dismiss it or dispose of it”.  The difference between those two steps, as both parties before us accept and as we agree, is that dismissal refers to the dismissal of the application without hearing any evidence or making any findings of fact, whereas disposal envisages that such evidence as is available shall be heard and a decision made on it.

	The Tribunal then went on as follows:

“9  We had considered the contents of the applicant’s Originating Application and the respondents Notice of Appearance.  We were satisfied that there was a clear conflict of evidence between the applicant and the respondent and that in these circumstances there would be no point in taking evidence from the respondent on the merits of the case in the absence of the applicant.
10  We decided to dismiss the application in the absence of the applicant because of his failure to attend.  We considered that the applicant had brought this situation upon himself by his failure to attend or to provide any evidence, such as a medical certificate to show that he was unable to attend.”

And then they dismissed an application for costs.

	The question again is whether, in that exercise of a discretionary power - because there is no doubt that it is a discretionary power - the Tribunal erred in law, either by giving a reason or reasons which were irrelevant and improper to take into account, or by failing to take into account matters which should have been taken into account, or by reason of perversity in that the decision was one which no reasonable Tribunal could have reached.

	On that issue we unfortunately find ourselves divided.  The view of the majority, which consists of my two colleagues, is that the Tribunal fell into no error of law.  They consider that by reading and taking into account the Applicant’s Originating Application and the Respondents’ Notice of Appearance the Tribunal was having regard to matters and dealing with documents which, in the Industrial Tribunal where there are no formal rules of evidence, could be taken into account evidentially, as well as by way of a statement of the party’s case.  Although they do not spell this out, the fair reading of paragraph 9 is that in the conflict between the Originating Application and the Notice of Appearance the Industrial Tribunal must have come to the conclusion that the Notice of Appearance was evidentially the more persuasive and that the reference to there being no point in taking evidence from the Respondents is therefore not a refusal to look at evidence at all, but a statement that they see no need for further evidence, especially in the context, which of course was the practical context, that any evidence given by the Respondent would, in any event, not have been challenged by cross examination because there was nobody there to cross-examine, and would not have been controverted by evidence on the other side, because apart from the Originating Application, which they did take into account, there would have been no further evidence from the Applicant in any event.  

	My colleagues therefore consider that paragraph 9 of the Industrial Tribunal’s Reasons can, on a fair reading, be taken as their dealing with the matter by way of disposal, that is to say by a decision after considering the relevant evidence, but in paragraph 10, in their view, the Industrial Tribunal gave an alternative and equally valid reason for dealing with the matter, if their decision should be taken to be one of dismissal without having regard to the evidence, that is to say dismissal in the bare sense in which it is used as the first of the two alternatives in rule 9(3).  Their reason for upholding the decision on that basis is that, although the first sentence of paragraph 10:  “We decided to dismiss the application in the absence of the applicant because of his failure to attend” might be ambiguous, because the “because” might refer to the reason for dismissal or the reason for the absence, it is quite plain in their view from the second sentence of paragraph 10 that the Tribunal are taking into account as a reason for their decision not only the absence of the Applicant but also the poverty of his reasons for absence, as they judged them to be, because they say “We considered that the applicant had brought this situation upon himself by his failure to attend or to provide any evidence, such as a medical certificate to show that he was unable to attend”.  

	For those reasons the majority decision of this Tribunal is that the appeal be dismissed and it is dismissed.  For myself, I would have reached a different conclusion and I shall explain very briefly what my reasons are.

	Addressing the first question, whether the reasons given by the Tribunal are proper and relevant reasons, in my view neither the reason given in paragraph 9 nor that given in paragraph 10 is relevant or proper.  To say that there is a clear conflict of evidence (by which I think they mean conflict of statements of fact) between the parties’ two documents, the Originating Application and the Respondent’s Notice of Appearance, cannot in my view be read as expressing a resolution of that conflict.  In fact it invites a resolution of the conflict by evidence and the obvious way in which to do that would have been to hear the evidence of the Respondents, who were present, albeit the Applicant was not.  So I do not consider that to be a valid reason for the decision to dismiss the application.

	Secondly, the reason given in paragraph 10 equally seems to me to be irrelevant.  The conduct of the Applicant in making his application for an adjournment was of course a proper matter to take into account and a matter which we have unanimously held was properly taken into account in the decision on the adjournment.  It is not, in my judgment, a relevant consideration when dealing with the decision whether to dismiss or dispose under rule 9(3).  The fact is that the absence of the Applicant, for whatever reason, is simply the trigger which brings the discretion under rule 9(3) into operation and is not a ground for the way in which it shall be exercised.

	I therefore believe that those two were not good reasons for the decision of the Industrial Tribunal, by which I mean of course that they were not good in law, not just that I consider that too much weight was attached to them.

	Secondly, I consider that the Tribunal give no evidence of having paid any attention to what, in my view, was a manifestly material consideration, namely that this was an unfair dismissal complaint, not for instance a discrimination complaint and, as an unfair dismissal complaint, it was one where it would be usual for the Respondent employer to open the hearing because the onus of proof, the burden of proof, would lie on the employer to show what was the reason for dismissal and that it was capable of being a fair reason.  Having got so far, there would then be an issue as to whether in fact the employer acted fairly, on which no onus would lie one way or the other, but it is the undoubted law, as I understand it and as reflected in the practice of Industrial Tribunals, that the initial onus in relation to the reason for dismissal lies with the employer.

	That is not, in my judgment, if Mr Mead went so far as suggesting that it was - and I am not sure whether he did - a conclusive consideration.  There is certainly no universal rule that when the onus is on the Respondent the Tribunal’s decision, in the absence of the Applicant, must always be to deal with the matter by way of disposal rather than dismissal, but that it is a relevant consideration seems to me to be clear.

	Of course, I fully accept that one should not read Industrial Tribunals’ Reasons unduly critically or minutely and that if they fail to mention a relevant consideration, but it is one which on a fair consideration of the circumstances one is satisfied they must have taken into account, then that is good enough, but it does not seem to me that this particular point is in that category.  It is by no means clear, especially given the nature of the reasons that they did give, that the Industrial Tribunal paid any attention to the fact that the onus was on the Respondent and that, therefore, an obviously possible course and one to merit serious consideration was that the Respondent should be required to call its evidence.  Indeed, the contrary seems to be suggested by their words “that in these circumstances there would be no point in taking evidence”.  Manifestly there was a possible point.  Whether, having taken all the proper considerations into account, they would have reached the same decision as they actually did or the reverse is not the question.

	Those would be my reasons for allowing the appeal, but for the reasons I have given earlier it will in fact be dismissed.