Appeal No.	 EAT/224/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 June 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR L D COWAN
MR S M SPRINGER MBE

REACT STAFFING AGENCY	APPELLANT

MR G BENSTEAD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION 
BY OR ON BEHALF OF 
THE APPELLANT	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this Hearing is to determine whether there is an arguable point of law in an Appeal which the Employers, React Staffing Agency wish to make against a decision of an Employment Tribunal which concluded that they were liable to the Applicant, Mr Benstead in the sum of £329.38.  The grounds of Appeal which had been filed, complain about the fact that the Tribunal did not accede to the Respondent’s application that the case should be listed for a date other than 18th November 1998.  On behalf of the Employers, Lorraine Ladner says that she had an appointment with a hospital following an operation which she had had previously.  She has provided us with the covering sheet to a fax which she says she sent to the Employment Tribunal on 12th November, that is 6 days before the Hearing took place, but we have not seen the fax itself.  We have seen a notice of discharge of patients from hospital following her operation which required her to go back on 18th November to be seen again, post-operatively.  

	It is arguable, as it seems to us, that if a party to proceedings before the Employment Tribunal has asked for an adjournment, reasonably promptly after receiving a document requiring them to attend hospital following an operation, the Tribunal were wrong to refuse to grant an adjournment from that day.  The Tribunal decided the case against the Respondent and had noted that the Applicant had given sworn evidence whereas the Respondent did not attend.  It was obviously important to their decision that the Respondent had not attended.  There is no indication in the Tribunal decision that any application for an adjournment from the date had been made and refused.  In those circumstances, we would have wished to have asked the Respondent this morning, precisely what she did ask the Employment Tribunal to do and to provide us with a copy of the fax that she says was sent on 12th November.  But unfortunately, on the morning of the Hearing, that is today, we received a fax from her saying that she is too ill to attend the Employment Appeal Tribunal and cannot attend.  

	In those circumstances, it seems to us, that the correct course to take is to allow this matter to proceed to a Full Hearing but to require the Respondent, within a period of 28 days from today, to make and swear an Affidavit saying when she asked for an adjournment, when she received the Notice of Discharge from the hospital and whether she received any communication from the Tribunal to indicate that her application for an adjournment had been refused and if she received no communication, what did she do after 12th November.  That Affidavit should be with us, as I say, within 28 days.  I have given 28 days, bearing in mind the fax which we received this morning.  I make the Order for the provision of that Affidavit and say that if it is not provided within that time, then the Appeal will be dismissed.  If there is difficulty in complying with that date because of ill health then she will have ample opportunity herself, or through a friend, to invite us to extend the time for complying with the Order, but we would anticipate that 28 days should give her ample time to comply with it.