Veitch Penny LLP - Exeter | Crediton, Devon

Case

Cooke v Glenrose Fish Company Ltd
Employment Appeal Tribunal - (21 April 2004)

Issues

(1) Unfair dismissal
(2) Practice and procedure
(3) Non-attendance at hearing by a party

Facts

On 10th October 2003, the Applicant’s claim for unfair dismissal was dismissed by the Hull Employment Tribunal due to the non-attendance of the Applicant at the hearing. The Respondent was in attendance but neither the Applicant nor his Solicitor appeared. It later transpired that he reason for non-attendance was through an error by the Applicant’s Solicitors in noting the date of the hearing in their system and failing to inform the Applicant of the date.

On the day of the initial hearing the Tribunal were advised that a bundle had been agreed and lodged. The Tribunal was waiting for the Applicant to arrive. When he did not do so by 10.50am the Tribunal went into Court and indicated to the Respondent’s Solicitors that they had waited long enough and that they would start. The Tribunal did not invite any further enquiries or engaged in further discussion of the Respondent’s Solicitor. The Tribunal did not make any enquiries before commencing the hearing.

The Tribunal considered the Applicant’s case but also considered that of the Respondent. It also heard the Respondent’s witnesses. Because of the non-attendance of the Applicant, the witness evidence was uncontested. The Tribunal rejected the Applicant’s evidence and accept that supplied by the Respondent. Consequently the Applicant’s application was dismissed.

The Applicant’s Solicitors then submitted an application for review that fully acknowledged that the reason for non-attendance was due to the failure on the part of the Solicitor. However the Applicant’s application for a review was refused on the basis that the Chairman did not believe it had a reasonable prospect of success.

The Applicant then appealed both of these decisions to the Employment Appeal Tribunal (EAT).

Decision

The EAT set aside the Order refusing the application for review and also exercised its own discretion by substituting a conclusion that the original decision of the 21st October should be reviewed and on such a review should be set aside. The matter was then remitted to a differently constituted Tribunal for a substantive hearing.

Comments

The previous case of London Borough of Southwark –v- Bartholomew stated that in similar circumstances it was incumbent on a Tribunal to telephone the non-attending party to establish whether they were on their way and their reason for non-attendance.

In this case it was found that there was no such duty upon the Tribunal, although it should consider doing so. It was confirmed that as there was no obligation on a party to attend a hearing, it is legitimate to hear the case in a party’s absence without further enquiry. However if the non-attending party then applies for a review, a review should ordinarily be allowed as long as there is good reason for the non-attendances.

It was also confirmed that (unlike for extensions of time) a Tribunal cannot refuse a review on the basis that the Litigant may have a strong claim against his Solicitor. Provided the attending party can be compensated in costs, there would normally be no good reason not to allow a review and order a re-trial.


Rachel Bickle – Trainee Solicitor in the Commercial Department at Veitch Penny.
Tel: 01392 288367, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .