Appeal No.	 EAT/281/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 July 1997

Before
THE HONOURABLE MR JUSTICE KIRKWOOD
MR S M SPRINGER MBE
MISS D WHITTINGHAM

MR G EDWARDS	APPELLANT

DEPARTMENT OF SOCIAL SECURITY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR A WILLIAMS
(Representative)
The Andrew Williams Consultancy
24 Carolina Road
Thornton Heath
Surrey
CR7 8DT	

	MR JUSTICE KIRKWOOD:   This is the preliminary hearing of an appeal by an employee, Mr Edwards, against a refusal by the Industrial Tribunal at London (South) on 19th November 1996 to review its earlier decision dismissing an application he had made to it in respect of his employment.

	The very brief background history of this case is that Mr Edwards began to work for the Department of Social Security on 3rd October 1993 and his employment ended on 1st January 1996. Between those dates Mr Edwards work was criticised. There was a meeting about it with his superior on 30th March 1994. There was a written warning given about it in November 1994. The pattern of criticism of inadequacy of work continued. In November 1995 a senior officer, Mr Lemmon, reviewed the employment history and concluded that Mr Edwards would never be a satisfactory administrative officer, and that the only practical option was dismissal. The appeal process was followed and Mr Edwards did not succeed.

	He made complaint by Originating Application to the Industrial Tribunal complaining of:

“1.  Insufficient training.
2. False accusations against me by colleagues.
3. Resulting in constructed dismissal.”

The form IT1 contains no more particularity than that.

	The respondent’s case was that the reason for dismissal related to capability. The Industrial Tribunal so found and found also that dismissal was fair.

	The problem that arose was that Mr Edwards was not present at the hearing. The tribunal dealt with that aspect in its extended reasons. They recorded that notice of the hearing had been sent to the parties on 15th October 1996 to take place on Tuesday, 19th November 1996 for two days. On 16th November, 1996 Mr Edwards wrote to the tribunal saying that he had come down with the flu and would be ill-prepared to proceed with the hearing on 19th and 20th. He also went on to say that there was certain material he was wanting from the Civil Service Appeal Board [“CSAB”] which was not forthcoming, and he sought a postponement. The 16th November 1996 was of course a Saturday. When that letter came to the attention of a Chairman on Monday, 18th November 1996, a postponement was refused in the absence of a medical certificate and on the basis that the other matters relating to the papers from the CSAB did not warrant a postponement.

	It is clear that an indication was given to Mr Edwards that day by the Secretary of the tribunal that he was disadvantaged by the absence of a medical certificate because he got one, and he had it communicated to the tribunal that day. It therefore was available to the hearing of the originating application the following day, 19th November. The doctor’s certificate was the standard form of certificate used for and indeed indicated that it was only to be used for Social Security and Statutory Sick pay purposes, and the certificate certified that Mr Edwards was unable to work for a week due to a viral illness, namely a left ear infection. The certificate recorded that the illness had afflicted Mr Edwards since 15th November 1996. 

	On 19th November 1996, the request for postponement was again considered, and a telephone call appears to have been made to Mr Edwards. Mr Edwards’s brother appears to have telephoned the tribunal and was told that if his brother wished to make an application for further postponement he should attend in person and that the tribunal would decide whether or not to proceed.

	It is not clear to us whether Mr Edwards did in fact attend in person, but in the result, the tribunal decided to proceed in the light of the fact that all written material had been served on Mr Edwards, and there was no doctor’s certificate certifying inability to attend the tribunal or indeed certifying an ailment that would of necessity keep Mr Edwards away. So the hearing went ahead in his absence.

	Mr Edwards then sought a review of that decision and questioned in his application for a review whether the Industrial Tribunal had erred in the exercise of its discretion in the light of the facts which included the ear infection, the assertion that Mr Edwards had the flu, and the assertion that the weather was particularly poor that day, (although from the information we have, we do not know how bad it was in Croydon). In the light of the decision of the Court in Holland v Cyprane Ltd [1977] ICR 355, in such circumstances the most anxious consideration should be given to postponing the hearing. Mr Edwards also in his application for a review queried whether the spirit of equity and the principles of fairness and natural justice were properly applied to the decision the tribunal made.

	The application for a review was refused and short extended reasons were given for that.

	It seems to us that the weakness and fundamental weakness in Mr Edwards’s application for review was in the absence of any medical information to confirm his own assertion that he had in fact been too ill to attend on 19th November 1996. He might indeed have been alerted to the need for such additional evidence by the reasons given for the substantive decision which was sent to the parties on 27th November 1996, some 13 days or so before the notice was given. 

	So there was no new material before the Chairman in considering the application for review. And nothing in the application to indicate that the tribunal on 19th November 1996 had approached the question of postponement on a material misapprehension as to the facts. 

	To succeed in this appeal it would have to be demonstrated that in refusing a review, the Chairman misdirected himself as a matter of law, or exercised his discretion wrongly. We are extremely grateful to Mr Williams for the helpful and moderate way in which he has appeared for the Mr Edwards on this preliminary hearing, but we are quite unpersuaded that Mr Edwards has an arguable case in respect of the matters to which I have referred. So that the appeal will be dismissed at this stage.