Appeal No.	 EAT/606/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 September 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR S M SPRINGER MBE
MRS R A VICKERS

MR N J GARROD	APPELLANT

REHFUSS DRIVES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	

	JUDGE PETER CLARK:	

1.	The appellant, Mr Garrod, was employed by the respondent from 27th June 1996 until his dismissal on 12th October 1998. There was an issue between the parties as to the effective date of termination, however nothing turns on that point.

2.	By an Originating Application presented to the Bedford Employment Tribunal on 17th December 1998 the appellant complained of unfair dismissal and unsafe working conditions. The respondent resisted the claim, contending that he was dismissed for gross misconduct.

3.	By a Notice of Hearing dated 26th January 1999 the parties were informed that the substantive hearing of the case would take place on 23rd March 1999.

4.	On 22nd March 1999, according to the tribunal’s summary reasons for decision, ordered to stand as extended reasons by a certificate of correction under the Chairman’s hand dated 22nd April 1999, the appellant telephoned the tribunal offices to say that he would not be attending the hearing on 23rd March as he could not afford the time to do so.

5.	The case was called on on 23rd March and the respondent’s representative, Mr Pritchard, applied for the application to be dismissed under Rule 9(3) of the Employment Tribunal Rules of Procedure. The tribunal did so, acting in accordance with that Rule. There is no appeal against that part of their decision.

6.	Mr Pritchard then applied for costs under Rule 12(1), which is set out in the tribunal’s reasons.

7.	The tribunal found that the appellant had conducted the proceedings unreasonably in:

(1)	failing to comply with a direction made on 15th January 1999 that the parties prepare an agreed bundle for the hearing;
(2)	failing to comply with an order for further and better particulars of the Originating Application made on 4th March;
(3)	failing to exchange witness statements;
(4)	failing to attend the hearing on 23rd March.

	In these circumstances the tribunal ordered the appellant to pay £500 towards the respondent’s costs, being the maximum specified sum provided for in Rule 12(3). They were satisfied that the respondent’s costs in fact exceeded that amount.

8.	Against the costs order only the appellant brings this appeal.

9.	This preliminary hearing having been fixed for today the appellant applied for an adjournment by letter dated 23rd September. That application was refused by a letter faxed on behalf of the Registrar to the appellant on 28th September. He was advised that if he did not attend the appeal would be determined on the papers.

10.	Having received that fax the appellant faxed a response of even date. He apologised for his non-attendance before us today and set out his submissions in writing. We have taken those submissions into account when determining this appeal.

11.	Apart from a polemic against the tribunal system, which we observe he chose to use, and observations on the perceived merits of his claim, with which we are not directly concerned, the appellant complains that the date of this appeal hearing was changed, so that he could not bring a witness to this hearing who is presently in Germany. Appeals to the EAT are on a point of law only. It is very rare for oral evidence to be admitted on appeal. He gives no indication as to what that witness might be able to say, nor on what basis his evidence would be admissible on appeal. We therefore see no grounds for adjourning the appeal.

12.	As to the merits of the appeal against the tribunal’s costs order, the only point made by the appellant is that following an unsuccessful business venture he had no money with which to pay these costs. He does not appear to challenge the basis for the tribunal’s finding that he acted unreasonably in the respects which we have set out in the conduct of the proceedings.

13.	It is now established in authority that a party’s inability to pay is a factor to be taken into account when an Employment Tribunal is a considering an application for costs. Normally enquiry should be made as to his means. See Wiggins Alloys Ltd v Jenkins [1981] IRLR 275. Omar v Worldwide News Inc [1998] IRLR 291.

14.	However, we do not understand the principle to be that costs will never be awarded against an impecunious party. Further, the obligation to enquire into his means must be subject to the obvious caveat that if a party chooses not to attend the hearing and gives no indication as to his means, the tribunal must deal with the matter on the information available.

15.	In our judgment this was plainly a proper case for the tribunal, in the exercise of its discretion, to make an award of costs. We can see no grounds in law for interfering with that order. Accordingly this appeal is dismissed.