Appeal No. UKEAT/0460/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 February 2009

Before
HIS HONOUR JUDGE PETER CLARK
MR C EDWARDS
MRS D M PALMER

LEWES ASSOCIATES LTD T/A GUIDO’S RESTAURANT	APPELLANT

MR M W LITTLE (DEBARRED)	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	No appearance or representation by or on behalf of the Appellant	
For the Respondent	DEBARRED	

SUMMARY
PRACTICE AND PROCEDURE:  Postponement or stay \ Review
Duty of parties to keep EAT informed of new address.  Application to postpone EAT hearing refused.  
Appeal against Employment Tribunal refusal (a) to postpone substantive hearing or (b) hold a review hearing.  
Postponement request properly refused;  as was review application.  No medical evidence (even on appeal) party was unfit to attend Employment Tribunal hearing.

HIS HONOUR JUDGE PETER CLARK
1.	The Appellant in this matter is Lewes Associates Ltd trading as Guido’s Restaurant, the Respondent before the Brighton Employment Tribunal.  The Claimant below was Mr Little.  We shall describe the parties as they appeared below.

2.	The principal in the restaurant business operated by the Respondent was Karen Gibson.  Her partner in that business was Ruth Anglezarke.  The Claimant was employed initially as a demi chef, then as a soux chef from 25 February 2006 until his resignation on 3 March 2007.

3.	By a Form ET1 lodged in the Southampton Employment Tribunal the Claimant raised various claims against the Respondent including unfair constructive dismissal, failure to provide itemised payslips or a written statement of particulars of employment and unpaid wages and holiday pay.  The Respondent lodged a Form ET3 disputing the claims.

4.	The case was listed for substantive hearing before an Employment Tribunal sitting in Brighton chaired by Employment Judge Balogun on 28 January 2008.  The Claimant attended the hearing in person;  the Respondent did not appear and was not represented.  At 9.45 am that morning, the Employment Tribunal record at paragraph 2 of their reasons promulgated with their Judgment on 11 February 2008, the Southampton Employment Tribunal received an e‑mail from Karen Gibson stating that she was unable to attend the hearing due to being taken ill the night before.  The e-mail did not specifically request a postponement of the hearing.

5.	The Employment Tribunal decided to proceed in the absence of the Respondent.  The Employment Tribunal was told by the Claimant that the Respondent had failed to provide any documentation or witness statements as directed at a Pre-Hearing Review / Case Management Discussion held on 9 November 2007.  They heard evidence from the Claimant and found him to be a straightforward and credible witness;  his evidence was accepted.  Based on what they heard they concluded that the Respondent had failed to pay the Claimant’s wages as they fell due and that he had been subjected to verbal abuse from Ms Anglezarke justifying his treating himself as constructively dismissed.  All other claims, save for outstanding holiday pay, were also upheld.  A 50 per cent uplift was applied for the Respondent’s failure to comply with the statutory grievance procedure.  The total award made in favour of the Claimant against the Respondent was £11,107.17.

6.	On 25 February the Respondent applied for a review of the Employment Tribunal’s Judgment.  Ms Gibson contended that she had provided her documents to the Claimant contrary to his assertion and complained that the case had proceeded in her absence.  As to her reason for not attending the hearing on 28 January 2008 she said this:

“Unfortunately, I was taken to my GP on the morning of 28 January 2008 as I was suffering from severe back pain and found it very difficult to walk.  I was prescribed strong anti‑inflammatory drugs and advised to contact the back pain clinic as I am still under their care.  A friend was staying with me as she was going to accompany me to the hearing.  I asked her to contact the Tribunal in Southampton, which she did by e-mail and she also contacted the Tribunal office in Brighton by telephone and explained the situation.
(My business partner, Ruth Anglezarke, is unlikely to be able to attend a hearing as she is suffering from a debilitating illness, which we now believe will be long-term.)”

7.	Judge Balogun considered that application and summarily rejected it by letter dated 14 March.  Her reasons for doing so included this, at paragraph 3.

“You have produced no independent evidence of your inability to attend the tribunal hearing on 28 January 2008.”

8.	On 25 March 2008 the Respondent lodged a Notice of Appeal, on the face of it appealing only the first Judgment, but also challenging the review decision in her grounds of appeal.

9.	The appeal was initially stayed for the Respondent to lodge the e‑mail sent to the Employment Tribunal on the morning of the hearing and a medical certificate by order of HHJ Serota QC dated 13 June.  In response Ms Gibson lodged a copy of the e‑mail, sent on her behalf by a friend, and a letter from a General Practitioner at the Claimant’s surgery, Dr Lamb, dated 6 August 2008 which states:

“I confirm that Karen Gibson attended an appointment at the Surgery on 28 January 2008 and was advised to refrain from work for a few days.”

She also provided a copy prescription for painkillers issued by Dr Kate McIntyre and dated 28 January 2008.

10.	In these circumstances Elias P. directed on paper, by an order dated 30 October 2008, that the matter proceed to this full hearing.

11.	The Claimant failed to file an Answer to the Appeal and following his failure to reply to letters from the Employment Appeal Tribunal dated 30 October and 16 December 2008 an order was made by the Deputy Registrar dated 8 January 2009 debarring him from taking further part in the appeal.  He has not appeared before us today.

12.	A Notice of this Hearing was sent to the parties on 22 January.  No steps we then taken to prepare and lodge bundles for the Employment Appeal Tribunal Hearing and on 29 January the case handler wrote to Ms Gibson at the Restaurant address at 145 High Street, Lewes, East Sussex.

13.	The Claimant contacted the Employment Appeal Tribunal on 11 February.  It seems that he had not notified this Court of a change of address.

14.	On 20 February the case handler again wrote to Ms Gibson referring to the Respondent’s non-compliance with directions given by the President on 30 October 2008.

15.	On 23 February Ms Gibson e‑mailed the Employment Appeal Tribunal, stating:

“I have just been forwarded a letter from you dated 29 January 2009 regarding an appeal hearing scheduled for 26 February.  Unfortunately the business premises (where the letter was sent) is now unoccupied, so I have not been receiving mail.  This letter is the first I have heard of this hearing.
I sent you an e‑mail a while ago notifying you of the closure of the business and asking you to forward any correspondence by e‑mail.
Would it be possible to send me any relevant documentation by e‑mail and postpone the hearing to enable me to prepare?
I apologise for this inconvenience, but it is not possible for me to prepare for and attend the hearing at this late stage.”

16.	That postponement request was refused by the Deputy Registrar on 24 February for the following reasons:

“This application is refused.  There is nothing on the file to indicate the Appellant notified this Court of a change of address and no evidence was supplied with this application.”

17.	This morning, at 9.20 am, a further e‑mail was received from Ms Gibson, renewing her application for a postponement of this hearing.  She begins:

“I refer to your e‑mail dated 24th February 2009.
I did not say that I had notified a court of any change of address.  When the business premises closed, I had no follow on address, so I e‑mailed the EAT to request that all correspondence be sent to me by e‑mail.

I accessed the business premises a few days ago and collected a pile of mail.  Your letter dated 29 January 2009 was amongst this.  There was no other correspondence from EAT.”

18.	In these circumstances the first question for this Tribunal is whether or not to postpone this hearing.  We shall not do so.  It is for the parties to inform the Court of a change of address.  Ms Gibson, on behalf of the Respondent, accepts that she did not do so.  She refers, in her e‑mail of 23 February, to having notified the Employment Appeal Tribunal of the closure of the business and asking that any correspondence be forwarded to her by e‑mail.  No trace of that e‑mail has been found on the Employment Appeal Tribunal system;  she has not provided a date for her e‑mail nor a copy of it, as the Deputy Registrar pointed out.  Further, her account of events is inconsistent.  In her e‑mail of 23 February she states:
“I have just been forwarded a letter from you dated 29 January …”

In her e‑mail this morning she says:
“I accessed the business premises a few days ago and collected a pile of mail …

19.	Turning then to the substantive appeal, the real question, it seems to us, is whether the Employment Tribunal should (a) have postponed the hearing of 28 January 2008 or (b) if not, ought the Judge to have directed a review hearing?

20.	Where a party informs the Tribunal in advance of a hearing that he or she will be unable to attend the hearing because of ill-health it is ordinarily desirable that she should be informed of her right to apply for a postponement:  Holland v Cyprane Ltd [1977] ICR 355.  That did not happen in this case, albeit the information was provided very shortly before the hearing on 28 January 2008.

21.	Further where a party is unable to attend a hearing through no fault of her own an adjournment should normally be granted if the tribunal is satisfied as to the genuineness of the reason for her inability to attend.

22.	The Judge decided against giving the Respondent an opportunity to be heard on this question at a full review meeting.

23.	However, Ms Gibson did not provide medical evidence until directed to do so by this Employment Appeal Tribunal.  Having done so, we are in as good a position as the Employment Judge to determine whether a review hearing was necessary.  We return to the letter from Dr Lamb.  It states that Ms Gibson should refrain from work for a few days;  it does not state that she was unable to attend the tribunal.  That distinction is important cf Teinaz v London Borough of Wandsworth [2002] IRLR 721;  Andreou v Lord Chancellor’s Department [2002] IRLR 728 (CA).

24.	Our conclusion is that (a) in the absence of medical evidence the Employment Tribunal was entitled to proceed in the Respondent’s absence to hear the case on 28 January 2008.  Employment Tribunal Rule 27(5) permits that course.  Whilst the Judge ought to have given the Respondent, through Ms Gibson, an opportunity to provide medical evidence before determining the review application under Rule 35(3), in the light of the medical evidence produced by Ms Gibson in response to Judge Serota’s order, which evidence we admit, the Judge’s decision to summarily refuse the review application under Rule 35(3) was plainly and unarguably correct (see Dobie v Burns International [1984] ICR 812) on the basis that the medical evidence supplied did not support the proposition that Ms Gibson was unable to attend the original hearing.

25.	In these circumstances we shall dismiss this appeal.