Roberts v Skelmersdale College

LORD JUSTICE MUMMERY: There are two matters before the court. The first is an appeal by Skelmersdale College against a substantive decision of the Employment Appeal Tribunal. The second is an application by Mr Roberts for permission to reinstate an application he made to this court for permission to appeal against a preliminary hearing of the Employment Appeal Tribunal in respect of the same matter. In accordance with directions which I gave when granting permission to Skelmersdale College to appeal, both these matters have been heard together. The college is represented by Mr Siddall. Mr Roberts has appeared in person.

Towards the end of 1999 and early 2000, Mr Roberts, a technician in the Media and Theatre Studios of the art department of the college, was dismissed on the grounds of alleged misconduct. His effective date of termination was 14 February 2000. On 25 February 2000 Mr Roberts commenced proceedings in the Employment Tribunal. According to his originating application, which was presented to the Liverpool Tribunal, his complaints ranged from unfair dismissal through breach of contract to staff discrimination and harassment. He details those complaints in box 11 of the IT1 originating application form.

There were ongoing problems in the lack of particularity and clarity in the presentation of Mr Roberts' claims. There were various hearings, which culminated in a directions hearing of 7 March 2001, at which all the claims, save for unfair dismissal, were struck out for want of prosecution.

The unfair dismissal claim was originally listed for hearing on 11 April 2001. On Mr Roberts's application the hearing was adjourned on grounds of his ill health. It was relisted for 13 June 2001. On 11 June 2001, Mr Roberts sent a fax to the Employment Tribunal saying that he had not received official notice of the hearing on 13 June. He had only learned of the pending hearing on 7 June when he received a communication from the college's solicitors.

On 12 June 2001 the parties were informed by the Employment Tribunal that the hearing would not be adjourned in advance of it taking place and that any application for a postponement would have to be made at the hearing. At about 12.30 pm on 12 June 2001 Mr Roberts informed the Tribunal's clerk that he was not sure that he would be able to attend on 13 June due to other commitments and that he was not prepared for a hearing. There was a later conversation Mr Roberts had with a different clerk.

On 13 June 2001 the Tribunal convened to hear the case. Mr Roberts did not attend and he was not represented. The Tribunal, exercising its powers under the regulations then in force, dismissed Mr Roberts's claim in his absence. The Tribunal relied on rule 9(3) of the Employment Tribunal (Constitution and Rules of Procedure etc) Regulations 1993 which was then in force, which has since been replaced by another rule, rule 11(3) which is in identical terms and is contained in the Employment Tribunal (Constitution and Rules of Procedure etc) Regulations 2001. I will return to the reasons that were given by the Employment Tribunal for following that course.

Mr Roberts then appealed to the Employment Appeal Tribunal. The Appeal Tribunal held a preliminary hearing on 22 April 2002, presided over by His Honour Judge Wakefield to determine whether Mr Roberts's appeal raised an arguable point of law. Only in so far as it did would it be proper for the appeal to continue. The judgment of Judge Wakefield referred to the decision which had been made and also to an unsuccessful application for a review. A notice of appeal had been placed before the Employment Appeal Tribunal running to 103 pages. It was mainly concerned with the merits of Mr Roberts's complaints. As Judge Wakefield observed, by reason of the events on 13 June 2001, there had never been a hearing on the merits. He said in paragraph 3 of his judgment that, looking only at the legal issues, the appeal should proceed to a full hearing in respect of what the Tribunal considered was the only arguable point of law; that is whether the Employment Tribunal had erred in law in dismissing the complaints under rule 9(3) of the 1993 rules "for his non-attendance".

Mr Roberts was dissatisfied with that decision. Although he had been allowed to proceed on a limited basis to a full appeal, he sought to appeal against the limitation of the grounds of his appeal to the Court of Appeal. His application for permission was ultimately struck out by Master Venne on 14 August 2002, not because the application for permission was out of time, but because Mr Roberts had not complied with the requirements of the Civil Appeals Office relating to the preparation and filing of bundles of documents in relation to the application.

On 9 September 2002, Mr Roberts issued another application for the reinstatement of his application for permission to appeal. That application has now been overtaken by events, although, as I mentioned at the outset of this judgment, it is still formally before the court.

On 25 September 2002 the substantive hearing of the appeal took place before another constitution of the Appeal Tribunal presided over by Miss Recorder Elizabeth Slade QC. The result, which appears from the judgment given by Miss Recorder Slade, is that there was a difference of opinion in the Appeal Tribunal about Mr Roberts's appeal. The majority concluded that the Employment Tribunal had not properly exercised its discretion and had erred in law in its application of rule 9(3). For that reason they allowed the appeal and ordered that Mr Roberts's application for unfair dismissal should be remitted to a differently constituted Employment Tribunal for hearing. The college applied to the Appeal Tribunal for permission to appeal, but the majority refused the application. I shall refer later in this judgment to the reasons given for that decision.

Following the Appeal Tribunal's decision, the college appealed to this court. They issued an application for permission to appeal which came before me on 4 February 2003. I granted permission to appeal. I also directed that Mr Roberts's application to reinstate his application for permission to appeal should be heard with the college's appeal.

Before turning to the submissions made by Mr Siddall and the points made by Mr Roberts, I should refer to the rule central to this debate. Rule 9 is concerned with the procedure at a Tribunal hearing. Rule 9(3) makes provision for cases in which a party fails to attend or to be represented. It provides:

It should also be noted that rule 10 provides that, in the case of any decision which is given, the Tribunal must provide reasons for its decision in a document signed by the Chairman. That clearly applies not only to decisions on the substantive merits of cases, but also to decisions, such as interlocutory decisions relating to directions for the preparation of the hearing and adjournments.

A number of points may be observed about rule 9(3). First, it confers on Employment Tribunals a very wide discretion to deal with cases (which are not uncommon) of when a party fails to attend or to be represented at the time and place which has been fixed. Secondly, if the absent party is the applicant, as was the case here, the Tribunal may, in its discretion, do one of a number of things: (i) it may adjourn the hearing to a later date; (ii) it may dismiss the application; or (iii) it may dispose of the application in some other way than adjourning it or dismissing it.

Thirdly, the rule does not impose on Employment Tribunals a duty of their own motion to investigate the case that is before them, nor does it impose a duty on them to be satisfied that, on the merits, the respondent to a case has established a good defence to the claim of the absent applicant. For example, in an unfair dismissal case where, as here, it is common ground that there has been dismissal, the burden of establishing the reason for the dismissal is on the respondent/employer. But, rule 9(3) does not require the Employment Tribunal to hear evidence from the respondent in order to determine for itself substantively the reason for the dismissal, or to satisfy itself as to whether, if the dismissal was for a potentially fair reason, it was fair and reasonable to dismiss the applicant/employee for that reason.

In the exercise of its discretion, the Tribunal would be entitled to require the respondent to produce evidence, but the rule does not impose any duty on the Tribunal to follow that course. The rule requires that, before exercising its discretion whether to adjourn the matter to a later date, to dismiss the application or to dispose of it in the absence of a party, the Tribunal must first consider a number of matters. Those matters all refer to documents that would be before the Tribunal, such as the originating application of the applicant, the notice of appearance of the respondent, any written representations which have been made to the Tribunal by the applicant, or any written answer furnished to the Tribunal under rule 4(3).

The fourth and final matter I would note is the requirement that the Employment Tribunal must give written reasons for its decision under rule 10. Whether the reasons it gives are adequate in any particular case must depend on the circumstances of that case, bearing in mind that the duty on the Tribunal to provide a written, reasoned decision is so the parties may know why they have won or lost the case. It should also be noted in this context that reasons are not defective simply because they fail to mention, or to deal with, every point that has arisen during the course of the proceedings or in the course of the hearing.

The general points which I have made are, in my judgment, supported by a number of authorities which have been referred to by Mr Siddall, as well as by the plain meaning of the language of rule 9(3). Those cases are: Retarded Children's Aid Society v Day [1978] ICR 437, in particular a passage in the judgment of Lord Denning at 443C-H; Chief Constable of ThamesValleyPolice v Kellaway [2000] IRLR 170, in particular paragraph 48; and Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, in particular paragraphs 14-16. I would also add a reference to the case, probably so well-known no-one needed to cite it, of Meek v City of Birmingham District Council [1987] IRLR 250, which lays down the test for determining the adequacy of reasons by given by an Employment Tribunal.

In the light of those general remarks, I turn to the issues which have been debated on this appeal. The jurisdiction of this court to hear appeals on points of law focuses on whether there is an error of law in the decision of the Employment Tribunal. The decision of the Employment Appeal Tribunal is of secondary importance, since it is simply the first level of appeal.

The decision of the Employment Tribunal was sent to the parties in extended reasons on 9 July 2002. Having stated the unanimous decision of the Tribunal that Mr Roberts's claim be dismissed pursuant to rule 9(3) of the 1993 rules, the Tribunal summarised the course of the proceedings. It started with the presentation of the originating application, summarised the various hearings which had taken place and dealt with directions, culminating in the striking-out order affecting everything except the unfair dismissal claim on 7 March 2001. Reference was made to the date when the matter was originally due to be heard and to the application by Mr Roberts for a postponement. Paragraph 8 is the crucial part dealing with the listing of the matter for a date when Mr Roberts failed to attend. It states:

I now return to quote paragraphs 11 and 12 of the extended reasons:

The Appeal Tribunal approached with great care a case like this in which an applicant had had his application dismissed without having a full substantive hearing. They examined in detail the course of the events which had led to the order of 13 June in Mr Roberts's absence. They considered the terms of rule 9(3) and the one authority to which their attention had been drawn, Mensah, and to which I have referred.

The Tribunal were divided. The reasoning of the majority is contained in paragraphs 18 onwards.

The Tribunal rejected an argument that the decision should be sustained on other grounds. They continued in paragraph 25:

The views of the dissenting member are then noted. The dissenting member relied on the history of the proceedings set out in the decision of the Tribunal. He considered that the decision to dismiss the application was justified on the history of the case, and did not consider that the appellant had demonstrated that the Tribunal had erred in law in its application of rule 9(3). The case was then remitted.

Mr Roberts submitted that the Employment Appeal Tribunal majority decision was correct and that we should therefore dismiss the appeal of the college. He said in his voluminous written submissions, and emphasised in his oral arguments to us, that he had been denied a hearing. In his written submissions he referred to Article 6 of the European Convention on Human Rights and the right to a fair trial which is conferred by that Article.

In fact he did not have a trial at all. Everything relating to the dismissal of his claim had taken place when he was not there. He said that there were procedural errors by the Tribunal in disregarding, striking out or ignoring vital evidence in his case, both in the form of documents and evidence from witnesses. He said that the Tribunal had been treating his case in this manner from an early stage without properly investigating it.

Turning to the events of 13 June, he said that he had never received any official notification from the Tribunal about the hearing on 13 June. He considered that the faxes which he had sent to the Employment Tribunal about postponing the hearing were sufficient for him to cover the position. He referred in his documents, and again in his submissions, to the merits of his case. He addressed the authorities which I have cited, referred to by Mr Siddall, saying that they were decided on different facts. He went in some detail through the extended reasons of the Tribunal pointing out what he claimed to be factual errors. He summed up his case in a vivid phrase saying that "it had all gone off at a tangent"; that he had not had a proper determination of his claim; and that he had been unfairly dismissed for an alleged breach of duty that was not part of his job description.

Bearing all those points in mind, I turn to the principles on which this court acts when there is an appeal against an exercise of discretion. I have already mentioned that rule 9(3) confers a wide discretion on an Employment Tribunal. In reviewing an exercise of discretion, the Court of Appeal acts in accordance with the general principle that it has to be shown by the appellant that the Tribunal has either erred in principle in its approach to the case in the exercise of its discretion, or has left out of account or taken into account some feature which it should or should not have considered, or that it decision is plainly wrong because the court is forced to the conclusion that the various factors relevant to the exercise of discretion have not been fairly balanced in the scale.

Mr Siddall submitted that this was a case in which the Employment Tribunal had correctly exercised its discretion without committing any error of law, that it was the Employment Appeal Tribunal which had mis-interpreted and misapplied the provisions of rule 9(3) and had wrongly usurped the discretion of the Employment Tribunal in allowing the appeal and remitting it to a different Tribunal. In this case Mr Roberts failed to attend the hearing, even though he knew that it was taking place on 13 June. He knew that he had been refused any adjournment or postponement of the case in advance of the hearing. It had been made clear to him that, if he wished to obtain a postponement, it would be necessary for him to turn up to the hearing. He did not turn up and was not represented. He did not give the Tribunal adequate reasons for failing to attend to either present his case or to seek an adjournment. The Tribunal complied with the rule in considering the particular documents which are mentioned in the proviso to rule 9(3), and gave adequate reasons for its decision.

There has been some criticism in the Employment Appeal Tribunal and in the skeleton arguments of the way in which the Employment Tribunal concluded its extended reasons. In the final paragraph, 12.4, it said:

If that were read in isolation, it might be understood that the only reason why it dismissed the claim was because Mr Roberts had not turned up. That is to ignore everything that goes before. The Tribunal had explained in the previous eleven paragraphs, and in paragraphs 12.1-12.3, the basis on which it was dismissing his claim. Mr Roberts did not attend which meant that rule 9(3) was engaged. In setting out the history of the proceedings, of the adjournments of the hearing and of the attempts to obtain an adjournment of the hearing of 13 June unsuccessfully in advance of that date, the Tribunal had clearly stated the background facts which were relevant to the way in which it exercised its discretion.

In my judgment, the Employment Appeal Tribunal ought, in those circumstances, to have dismissed rather than allowed Mr Roberts's appeal. The Employment Appeal Tribunal, not the Employment Tribunal, fell into error. The two errors of the Employment Appeal Tribunal (and I refer to the views of the majority) are, first, in unduly restricting the scope of the discretion conferred on the Employment Tribunal in cases to which rule 9(3) applies. The view seems to have been taken by the Appeal Tribunal that there was no discretion in the Tribunal on 13 June to dismiss the application of Mr Roberts for unfair dismissal, having considered the documents that 9(3) requires the Tribunal to consider. The thrust of the reasoning of the majority is that the discretion could only properly be exercised by requiring the college to give evidence and to make submissions in relation to matters to which the burden of proof was upon it; that is, the reason for dismissal, and also in relation to other considerations on which the burden of proof was not upon it, namely to consider whether the decision to dismiss was fair and reasonable.

In my judgment, that is a misreading of rule 9(3). The Employment Tribunal has a discretion to follow that course, but no duty is imposed upon it to do so. In a proper case it is entitled to exercise its discretion to dismiss the application, having considered the documents referred to in rule 9(3) without having to investigate further the evidence and the merits of the case. I also disagree with the views of the majority of the Employment Appeal Tribunal that rule 9(3) requires what is described as "due" consideration. That is a gloss on the wording of the rules. The word "due" does not appear. It is required to give consideration to the documents referred to in the rules. It is true that, as a pre-requisite of exercising their discretion, it must consider those documents, but, in my judgment, it is not required, though it may choose to do so, to hear evidence and submissions relating to whether the dismissal was fair or unfair.

Far from finding that the Employment Tribunal erred in law, I find that it acted within the discretion that was conferred upon it. It cannot possibly be said that its decision was plainly wrong, that it erred in principle, or that it acted on the basis of irrelevant material or left out of account relevant material. The errors of law in this matter are to be found in the decision of the majority of the Appeal Tribunal.

I would allow the college's appeal. The Employment Appeal Tribunal ought to have dismissed Mr Roberts's appeal rather than allow it. In my judgment there is nothing left in Mr Roberts's application to reinstate his permission application to appeal against the preliminary hearing decision in the Appeal Tribunal. Parts of his claim, other than unfair dismissal, had already been struck out by an unappealed order of the Employment Tribunal. Only his unfair dismissal claim survived. That was dismissed by order of 13 June 2001, which, as I would hold, was made in the valid exercise of the Employment Tribunal's discretion.

For those reasons, I would refuse to reinstate Mr Roberts's application for permission to appeal. It would be a pointless exercise. I would allow the college's appeal and refuse Mr Roberts's application.

LORD JUSTICE JONATHAN PARKER: I agree.

LORD JUSTICE SCOTT BAKER: I also agree.