Appeal No. EAT/960/93
	I N T E R N A L 

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9 February 1994

	Before

	THE HONOURABLE MR JUSTICE WATERHOUSE

	MR J DALY

	MRS M E SUNDERLAND JP

MR S KELLER T/A GRAPHIC IMPRESSIONS
	APPELLANT

MR S HAYDEN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON

	

	MR JUSTICE WATERHOUSE:  In this case an employer appeals against the decision of an Industrial Tribunal sitting at Bury St Edmunds on 1 September 1993.  That Tribunal found unanimously that the Respondent had been unfairly dismissed and they proceeded to award him the sum of £2,982.50 by way of compensation.  The basis of that assessment of compensation was that, if a fair and proper procedure had been followed by the employer in relation to the dismissal, the chance of the Respondent being retained would have been about 50%.

	The outstanding feature of the case is that, when the Respondent's Originating Application was heard, the Appellant was neither present nor represented.  All the Tribunal had from him was his appearance to the Originating Application, paragraphs 3, 4 and 5 of which read as follows:

		"The applicant, Steven Hayden, was one of two machine minders.

		I do not operate a last in first out policy.

		I carefully considered length of service, sickness record, timekeeping, ability, experience and attitude of the two machine minders."

	At the hearing below the Respondent gave full evidence about his employment history.  That showed that he had been employed for over 9 years as a machine operator.  The Appellant is a printer carrying out type-setting, design and art work and undertaking a variety of different tasks.  According to the Respondent, he operated the machines in the machine department and he was the only person employed there until 1987, when a young man was taken on under the Youth Training Scheme and was trained by the Respondent in the operation of the machinery.

	In about 1991 a further large press was bought but the Respondent was the only person who could operate that and the younger employee never learnt how to do so.  There was eventually a down-turn in work, certainly by 1992, and, some three months before he was given notice, the Respondent was asked to try his hand at selling.  He had no experience of that, although he had always assisted in all other aspects of the business, according to his own evidence.  He said that he agreed to undertake selling and that he did so without complaint, although he conceded that he had no special aptitude for that work.

	Eventually, on 27 November 1992, according to the findings of the Tribunal, the Respondent was called into the Appellant's office.   He was told by the Appellant that, since work had been slow in the past few months he would have to be given notice; and he was given 9 weeks' notice on the grounds of redundancy.  The only reason, given by the Appellant to the Respondent for his selection for dismissal was that his salary was greater than that of the younger machine operator.	The opinion of the Respondent was that the Appellant had made up his mind about what was going to happen and was not prepared to resile from his decision or to discuss it.  That decision was confirmed by letter to the Respondent dated 30 November 1992.   The Respondent did seek an explanation for his selection for redundancy be writing to the Appellant in January 1993 but the Appellant did not respond to the letter and there was no further discussion during the time that the Respondent was working out his notice.  

	The Tribunal below considered all these matters and cited the reason for dismissal given by the Appellant in the Notice of Appearance but pointed out that he had not appeared before them to elaborate the notice or to explain how, on the basis that he had specified, he had come to select the Respondent.  The evidence of the Respondent had indicated that no reasonable person applying the criteria stated by the Appellant in the notice of appearance could have chosen the Respondent rather than the younger employee for redundancy.  It had been pointed out also by the Respondent that he would have been prepared to accept a reduction in pay because of the financial circumstances if that opportunity had been afforded to him.

	On the basis of the evidence that we have briefly outlined, we are quite satisfied that the decision made by the Tribunal below was one open to them, having directed themselves properly to the relevant law.   We can detect no error of law in their approach or in their decision.  Nevertheless, the Appellant has sought to appeal against that decision and we have fully considered the 3 pages of proposed grounds of appeal in which he seeks to assert that there was an error of law on the part of the Industrial Tribunal.  When the grounds of appeal are examined in detail, however, it is clear that all of them depend upon evidential matters that were not before the Tribunal because the Appellant himself failed to appear.

	The Appellant has noted that he was given some advice, we know not by whom, to the effect that he need not appear but, as a matter of commonsense, he must have known that he was faced with a serious application by a former employee, which might involve the award of a substantial sum against him.  It may well be, that if the Respondent had appeared below, the Tribunal would have come to a different conclusion but they cannot be criticised for failing to take into account evidence that was not presented at the hearing.  The reality of the matter is that, if there was a remedy available to the Appellant, it was the right to apply for a review of the Tribunal's decision under the provisions of Regulation 10 of the Industrial Tribunals Rules of Procedure Regulations 1985, Schedule 1.  We do not however encourage such an application now.  The application would be considerably out of time so that an extension of time would be necessary.   Moreover, in general terms, the failure of a party to appear before an Industrial Tribunal as the result of a voluntary decision rather than a failure to receive notice, or something of that kind, is not normally a sufficient reason for granting a review.

	The appeal must therefore be dismissed.