Veitch Penny LLP - Exeter | Crediton, Devon

Case

Roberts v Skelmersdale College
Court of Appeal - (20th June 2003)

Issues

1) Employment Tribunal Procedure
(2) Absence of Party
(3) Employment Tribunal Rules of Procedure

Facts

Arthur Roberts was employed as a Technician at Skelmersdale College and was dismissed on grounds of alleged misconduct. He then made a claim for unfair dismissal at the Employment Tribunal. He then requested an adjournment on the basis of medical grounds. He then claimed that he had not received notice of the new hearing date until 5 days before it was due to take place. He therefore requested a further adjournment which was refused. It was pointed out to him by the Tribunal staff that if he attended and satisfied the Tribunal that he had not received the notice in time the Tribunal may consider allowing the adjournment.

Roberts did not attend the hearing and was not represented. The Tribunal therefore dismissed his claim in his absence under Rule 9(3) of the Employment Tribunal Rules of Procedure 1993. Not only did he fail to attend the hearing, he also gave no reason for his non-attendance.

Rule 9(3) states that if a party fails to attend a hearing the Tribunal may dismiss or dispose of the matter in that party’s absence provided that the Tribunal first “shall consider [the party’s] Originating Application and any representations in writing presented by him”. Upon the Roberts’ Appeal the Employment Appeal Tribunal found that before the discretion to dismiss or dispose of a matter is exercised a Tribunal should give “due consideration” to the material produced by the absent party. This was material as to whether the Tribunal can use its discretion and what to do with the claim when it was disposed.

The Employment Appeal Tribunal found in this case that the Tribunal had not given adequate reasons as to why (having considered the documentation) it had felt that it was appropriate to dismiss the matter. Accordingly the Appeal Tribunal allowed the employee’s Appeal and reinstated his claim.

The employer then appealed.

Decision

The Court of Appeal decided that the Appeal would be allowed. It felt that Rule 9(3) of the Rules gave the Employment Tribunal a very wide discretion when a party had failed to attend. The Tribunal had no duty to investigate the case before then or to be satisfied that the Respondent had established a defence to the absent Applicant’s case. All that was required was for the Tribunal to consider the papers (as opposed to giving them “due consideration”). The reasons for a Tribunal’s decision would not be inadequate if it failed to deal with every point arising during the proceedings. The Tribunal had been correct to use its discretion as the employee had been informed that he needed to attend the hearing to request a postponement.

The Court of Appeal felt the Appeal Tribunal had erred in applying Rule 9(3) and accordingly its decision to reinstate Roberts’ claim would be set aside.

Comments

Rule 9(3) (now Rule 11(3)) gives the Tribunal the power to dismiss a complaint if an Applicant fails to attend or to be represented. In this case the Court of Appeal found that this Rule conferred a very wide discretion on Tribunals. There is no duty on a Tribunal to investigate the case or any duty that the Tribunal needs to be satisfied that the Respondent has established a good defence on the merits of the claim.