Appeal No. UKEAT/0134/11/DM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

	At the Tribunal
	On 24 January 2012

Before
HIS HONOUR JUDGE PETER CLARK
MR D EVANS CBE
MR D G LEWIS

MR D HIBBERT	APPELLANT

APPLE EUROPE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR RICHARD SAMUEL
(of Counsel)
Instructed by:
Silks Solicitors
27 Birmingham Street
Oldbury
B69 4EZ
	
For the Respondent
	MR IAIN STEELE
(of Counsel)
Instructed by:
Lewis Silkin LLP
5 Chancery Lane
Cliffords Inn
London
EC4A 1BL

SUMMARY
PRACTICE AND PROCEDURE
Postponement or stay
Review

Claimant unable to attend substantive Employment Tribunal hearing due to his having to take his sick child to hospital.  So informed ET, which proceeded to hear case in his absence.  Review applications summarily dismissed.

Claimant’s appeal allowed.  Case remitted for rehearing.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This case has been proceeding in the Watford Employment Tribunal.  The parties are Mr Hibbert, the Claimant, and Apple Europe Ltd, the Respondent.  This is an appeal by the Claimant against the decision of a Tribunal chaired by Employment Judge Liddington, sitting on the substantive hearing of his claims on 6 October 2010, to hear the case in his absence, and by a Judgment dated 24 November, for which Reasons were given on 7 January 2011, to find that his dismissal was automatically unfair under section 98A(1) of the Employment Rights Act 1996 (ERA) on the Respondent’s concession, but that he was not entitled to any compensation, and further that the Employment Judge was wrong to reject his two subsequent review applications summarily.

Procedural history
2.	The Claimant was employed by the Respondent as an intern on a fixed‑term contract on 17 February 2007 until, following an extension, that contract terminated on 23 June 2008, in circumstances which the Respondent accepted amounted to a dismissal under section 95(1)(a) or (b) ERA.  He presented a complaint of unfair dismissal to the Tribunal on 22 September 2008 and later a claim for unpaid holiday pay on 22 December 2008.  The claims were consolidated, and were resisted by the Respondent.  The substantive hearing was adjourned on some five occasions before the hearing fixed for 6 October 2010.  Mr Steele draws particular attention to the Claimant’s successful application for an adjournment on 29 May 2009 on the grounds of his ill health, accompanied by a medical certificate.  On two occasions adjournments were caused by the Respondent’s witness unavailability.

3.	On 6 October 2010 the Claimant was unable to attend the hearing because he, a single parent with two children, had to take his ten‑month‑old daughter to hospital.  At 8.44 that morning, the hearing being listed for 10.00am, the Claimant emailed the Tribunal in these terms:

“I apologies [sic] but I will be unable to attend the hearing today.
Overnight my 10 month old daughter has become unwell and is attending the hospital.
I will also need to receive further treatment for my severe back problem as soon as my daughter is stable.”

4.	A note from the Employment Judge dated 26 May 2011 (paragraph 10) records the following:

“My notes indicate that the clerk brought that email to me at 9.05am.  By that point the clerk had spoken to the Claimant and informed him that he would need to submit proof of his daughter’s illness and attendance at hospital.  I asked the clerk if the Claimant was asking for a postponement.  She replied that he hadn’t said; rather, that he could not speak as his child was crying.  The telephone conversation had been, she reported, ‘very rushed’.”  

5.	Rule 27(5) of the Employment Tribunal Rules provides three options for a Tribunal faced with a Claimant’s non‑attendance: dismiss the case, hear it and dispose of the matter, or adjourn the proceedings.  This Tribunal took the second option.  Its reasons for doing so appear from paragraphs 3 to 4 of their Reasons, and paragraph 11 of the Employment Judge’s note, to which I have just referred.  In the Reasons they say:

“3. The Hearing was scheduled to begin at 10.00a.m. on 6 October 2010.  However at 8.44a.m. the Tribunal received an email from the Claimant saying that he was ‘unable to attend the hearing today’ as his daughter was unwell and would be attending hospital.  However, the Claimant did not request a postponement in that email and nor when the clerk subsequently spoke to the Claimant did he do so.
4. When the Tribunal convened Counsel for the Respondent conceded automatic unfair dismissal.  All of the Respondent’s witnesses were present and the Tribunal also had copies of the Claimant’s statements.  Bearing in mind that the legal burden of establishing the reasons for dismissal is on the Respondent in cases where dismissal is admitted and given the considerable evidence available to the Tribunal coupled with the fact that no request for postponement had been made, the Tribunal decided to hear the case in the Claimant’s absence.”

6.	And at paragraph 11 of the note it is said:

“Having considered the fact that there had been five postponements, that the claim was now over two years old, the Respondent’s witnesses were present, the Tribunal had the evidence of the bundle as well as the Claimant’s witness statement, and taking into account that the burden of proof was on the Respondent, dismissal being conceded, the Tribunal decided to proceed in the Claimant’s absence.”  

7.	The Tribunal then heard oral evidence from three witnesses called by the Respondent, and reached their conclusions.  The reasoning differs between the oral Judgment recorded by Mr Steele, who appeared below, and the written Reasons.  The latter take precedence, and their conclusions may be summarised as follows:

(a)	The dismissal was automatically unfair under section 98A(1).  There was a technical breach of the statutory dismissal and disciplinary procedure then in force, in that the Claimant was not told of his right of appeal, although he did in fact exercise that right.

(b)	It was not just and equitable to make a minimum basic award of four weeks’ pay in those circumstances, because the Claimant had received four weeks’ pay in lieu of notice (paragraph 27).

(c)	There should be no compensatory award because his refusal to accept a permanent contract offered by the Respondent led to his dismissal.  There was a failure to mitigate his loss, and he contributed to his dismissal to the extent of 100 per cent.  Further, he ought to have found fresh employment within one month of termination (paragraph 28).

(d)	His holiday pay claim failed because he had received his full entitlement.

8.	The Claimant made his first review application on 6 December 2010.  That was rejected by the Employment Judge on 23 February 2011.  His second, fuller, application dated 7 March was rejected on 18 April 2011.

Discussion
9.	It is common ground that the Claimant had a genuine reason, his baby daughter’s ill health, for not attending the hearing on 6 October 2010.  There has been considerable debate before us as to the effect of the Claimant failing to ask in terms for a postponement in his email sent on the morning of the hearing or in the telephone conversation with the Tribunal clerk.  That point, it seems to us, is somewhat academic, because his subsequent review applications made it clear, if it was not clear on the morning, that he wished to be heard.  As he said in his second application, he “assumed the case would not go ahead with [sic - without] me”.  The Tribunal considered a number of factors that plainly pointed to proceeding with the hearing; those are set out in paragraph 4 of their Reasons and paragraph 11 of the Judge’s note, to which we have referred.  What they did not do, as Mr Samuel submits, is balance the factor of the Claimant being unable to attend for good reason.  That was, in our judgement, an error of law; they failed to take into account a relevant factor.  We are reminded of the observation of Peter Gibson LJ in Teinaz v London Borough of Wandsworth [2002] IRLR 721 at paragraph 21, where he said this:

“A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the Tribunal or court and to the other parties.  That litigant’s right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less.  But the Tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.”

10.	We consider that general principle applies in the second case, and are fortified in that view by the approach of the EAT in Holland v Cyprane Ltd [1977] ICR 355, Cumming‑Bruce J presiding, and Cooke v Glenrose Fish Company Limited [2004] ICR 1188, Burton P presiding.  True it is, as Mr Steele submits, that in Teinaz an adjournment was requested, and refused by the Employment Tribunal.  However, in the present case the Tribunal was required to consider adjourning the case under rule 27(5).  In so doing, it was incumbent on the Tribunal to weigh in the balance the Claimant’s inability to attend and the effect that may have on his right to a fair hearing.

11.	The review procedure provided an opportunity for the full Tribunal to reconsider the position, but the Employment Judge’s summary rejection of those applications prevented it from doing so.  The matter was not put right on review (see Cooke paragraph 15).

Disposal
12.	In these circumstances, we shall allow this appeal and, exercising our powers under section 35(1) of the Employment Tribunals Act 1996, we shall remit the question of remedy for unfair dismissal to a fresh Tribunal for rehearing.  At that remedy hearing the new Tribunal will wish to consider whether, in addition to being automatically unfair, the dismissal was substantively fair or unfair, for the purposes of assessing compensation, and, in addition, questions under the principle in Polkey v A E Dayton Services Ltd [1987] IRLR 503, and of contribution and mitigation of loss considered by the first Tribunal.