Appeal No.	 EAT/867/96 & 		 EAT/868/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 February 1997

Before
HIS HONOUR JUDGE N BUTTER QC
MR K M HACK JP
MR N D WILLIS

CALDY MANOR RESIDENTIAL HOME LTD 
(IN ADMINISTRATIVE RECEIVERSHIP)	APPELLANTS

MR R ALLEN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R D HAYES
(Representative)
York Montague Ltd
25 Old Burlington Street
London
W1X 1LB	
For the Respondent	NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
RESPONDENT	

	JUDGE N BUTTER QC:     This is an appeal by Caldy Manor Residential Home Ltd, in respect of the decision of the Chairman of an Industrial Tribunal at Liverpool on 25 June and also 10 July 1996 , whereby the Chairman refused to review an earlier decision of the Tribunal made on 7 June 1996.  At that hearing there was no appearance by either party.  The Applicant had sent a letter indicating that he would not attend.

	Paragraph 4 of that decision states:

“4  At the hearing no one attended for or on behalf of the respondent.  They sent no communications to the Tribunal.”

	In paragraph 7 the Tribunal said:

“7  ...We decided to determine the case.  We noted that the respondent failed to provide any explanation for its non-attendance.”

	In paragraph 8 they said:

“8  ...The burden is on the respondent to prove that the reason for dismissal is a fair statutory reason.  It had the opportunity to attend and seek to do so.  It did not.  In all the circumstances we are not satisfied that the respondent has proved that the principal reason for the applicant’s dismissal was his conduct.  In these circumstances his dismissal was unfair.”

	They then awarded the Applicant £537.00p.

	It is the Appellants’ case that, prior to the date of the hearing, namely on 20 May, he had telephoned the Tribunal office and spoken to a member of the staff who responded to his request to speak to a Mrs Palin.  He maintains that he asked that the planned hearing be postponed as he would be unable to attend owing to a pre-booked holiday and was told it was unlikely that his request would be refused.  He offered to repeat the request in writing which he would send the following day by post and fax and, he says, therefore that he dictated the contents of both messages and passed them to his staff.  He is able to show that on that day there was a telephone call made to the Tribunal.  Surprisingly, it lasted only 1 minute and 4 seconds.

	So far as the fax is concerned, he says that it has turned out that the fax was never sent to the Tribunal as a result of secretarial error within his office.  So far as the letter of 21 May is concerned, he says he does not know what happened to that, though it appears from correspondence on the word processor records, it can be shown that a letter was correctly addressed and it appears that it would have been despatched in a window envelope.

	The letter itself is dated 21 May and we have been provided with a copy of it.  It is addressed to Mrs P.J. Palin at the Industrial Tribunal office.  It says:

“I am in receipt of your notice dated 17 May.  As advised by telephone yesterday I shall be on holiday and thus unavailable on 7 June and should therefore be grateful if you would postpone the hearing scheduled for that date and advise me in due course of the revised date.”

	In his decision of 25 June, the Chairman considered the representations which had been made seeking a review, and noted in paragraph 4 of that decision that there was no attendance note for 20 May and therefore no record of any conversation between Mr Hayes and Mrs Palin.  The Chairman went on to say that the postponing of a hearing is a judicial, not an administrative function, and he dealt with the fact that investigation showed, as we now know to be correct, that no fax was sent or received on 20, 21 or, indeed, 22 May 1996.  He concluded in paragraph 6 by saying:

“In all the circumstances I am not satisfied that the respondent has shown that it had reasonable grounds for believing that the hearing had been postponed.  In these circumstances the application for review has no reasonable prospect of success and is dismissed.”

	He expressed himself in similar terms in relation to the decision on 10 July, when again he refused the review.

	Rule 11 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, as set out in Schedule 1 to those Regulations, deals with the powers of a Tribunal to review its decision.  The relevant part reads as follows:

“11(1)  ...a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that -
(c)  the decision was made in the absence of a party;  
or
(e)  the interests of justice require such a review.”

	At sub-paragraph 5 it is provided that:

“(5)  An application for the purposes of paragraph (1) may be refused by the President or by the chairman of the tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.”

	In reaching the decision which he did, the Chairman had a discretion and it is rare for the Employment Appeal Tribunal to interfere with the exercise of such discretion.

	It is our unanimous view, however, that the Chairman does not appear to have exercised his discretion on an appropriate basis.  It is of fundamental importance that any party who wishes to be heard shall be heard.  If, through error or mistake or misfortune, a decision is reached in the absence of that party, the interests of justice will often require that the person should have that opportunity.  

	There are various factors to be taken into account.  For example, why did the party not attend?  Has the other party been prejudiced and if so, to what extent?  Can that party be compensated by costs?  Has the party who wishes to be heard, been guilty of delay in making the application?  

	Here, the original hearing was in the absence of both parties.  There is no evidence of prejudice to the Applicant, except in so far as he could face the prospect of a contested hearing.  There has been no delay by the Appellants.  

	There were a number of factors therefore, which, in our view, should have been taken into account, but do not appear to have been taken into account.  

	We reach the conclusion that the Chairman erred in his approach to the application and that the interests of justice in this particular case require us to remit the matter to a differently constituted Tribunal for the purpose of deciding whether or not the application to review be granted.  It may well be that, at that hearing, oral, and not written representations will be considered.

	For these reasons the appeal is allowed.