PRACTICE AND PROCEDURE – appearance/striking-out
The Claimant was represented by her husband, who is not legally qualified. They attended and participated in a Preliminary Hearing, at which an ET considered whether the Claimant’s claims had no, or little reasonable prospect of success, and allowed them to proceed without making a deposit order. The Claimant was notified of the substantive Hearing of her claims and was aware of the date of the Hearing, but failed to attend the Hearing, and failed to contact proactively the ET to explain that she could not attend; or to seek an adjournment.
Given the Claimant’s non-attendance, a clerk of the ET telephoned and spoke to the Claimant’s husband, who was identified as her representative. He informed the clerk that the couple’s son was ill; he was looking after the son; and his wife was at work but hoped to be at the ET in hour or two. He was informed that this was not satisfactory, and the ET dismissed the Claimant’s claims as she had failed, without good reason, to attend the ET Hearing.
The Claimant’s husband then wrote to the ET, which the ET treated as a reconsideration request, asserting that the couple had not attended because of the husband’s ill health and a refusal by a family friend, who had been due to babysit, to look after their son. The Claimant had attended work, as she had responsibility to take colleagues to work.
An EJ rejected the submissions as providing adequate explanations for the Claimant’s non-attendance, including why someone else could not have taken colleagues to work and the inconsistency of that explanation with the Claimant’s husband’s verbal explanation that the Claimant was at work; a previous failure to explain the family friend’s reluctance to look after the son; the failure by the husband or the Claimant to contact the ET; the lack of evidence that the husband was unable to look after the son, to permit the Claimant’s attendance; and on the Claimant’s explanation, a lack of satisfactory arrangements for her son to be looked after, about which the ET had been kept in ignorance. The EJ concluded that the Claimant had chosen not to attend the hearing.
In her appeal, which the Claimant subsequently sought to amend, the Claimant asserted that where an ET was in contact with a party which had failed to attend a hearing, it was bound to notify that party of the consequences of non-attendance and their ability to apply for a postponement. That proposition was rejected by (as she then was) Her Honour Judge Eady QC at a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, as it would place an undue burden on ET staff, where the obligation was on the Claimant to contact the ET if there were obstacles to her attendance.
Permission was granted to proceed with the remainder of the grounds, which were (1) that the ET had erred in concluding that no satisfactory childcare arrangements had been put in place, and it was wrong for the ET not to consider that there were unforeseen consequences preventing the Claimant’s attendance. (2) The ET and EJ had erred in concluding that the Claimant had made a conscious decision not to attend the ET Hearing, by placing undue weight on her attendance at work, when she had only attended to take colleagues. (3) The ET and EJ had placed impermissible weight on what had been reported to them by the ET clerk, when the Claimant’s husband had only provided verbal comments and there was no written record of the discussion. (4) The ET and EJ had failed to consider adjourning the Hearing, when the Claimant and her husband had attended the previous hearing.
Held: The ET and EJ were entitled to conclude that the Claimant had failed, without good reason, to attend the ET Hearing. Applying Transport for London v O’Cathail [2013] EWCA Civ 21, overall fairness to both parties is consistent with the overriding objective and the assessment of fairness must be made in the round. The Claimant had not been entitled to assume that because of her personal circumstances and the fact that her claims had not been struck out previously, or had deposit orders made in respect of them, the ET Hearing could not proceed in her absence. The Claimant had not been proactive or timely in her communications with the ET and EJ and had provided limited information to them, which the ET and EJ were entitled to treat as inconsistent and unsatisfactory. The EJ was entitled to conclude that the Claimant had chosen not to attend the ET Hearing and the ET and EJ were entitled to consider, and rely on, the verbal communications from the Claimant’s husband. In his reconsideration request, the EJ had considered all the factors relevant to whether the ET should have adjourned the Hearing.
Citations:
[2020] UKEAT 0088 – 19 – 1601
Links:
Jurisdiction:
England and Wales
Employment
Updated: 25 November 2022; Ref: scu.650590
