Appeal No.	EAT/1197/00 		EAT/862/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 October 2002

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR D CHADWICK
MR D NORMAN

AUSTIN ROBERTS LIMITED	APPELLANT

MR C KNAGGS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR GILL
Appearing under the
Employment Law 
Appeal Advice Scheme 

MR JUSTICE BURTON

1	This is the preliminary hearing of an appeal by Austin Roberts Ltd represented by Mr Roberts, although today they have had the benefit of Mr Gill of Counsel, instructed by ELAAS on their behalf, against a Decision of an Employment Tribunal as long ago as 6 July 2000 in respect of a claim for unfair dismissal by Mr Knaggs who was dismissed on 21 December 1999, nearly three years ago.  

2	The matter last came before this Tribunal on 17 April 2002 when the case was listed as the full hearing of an appeal by Mr Roberts on behalf of the company.  The circumstances have been very fully set out by the then President, Lindsay P, in his judgment on behalf of the Tribunal on 17 April 2002 and we do not need to repeat it.  The company did not attend at the hearing of the Employment Tribunal on 28 June 2000 which led to the Decision of 6 July to which we have referred, nor had a timeous Notice of Appearance been put in.  

3	It seems that the first Notice of Appearance alleged to have been supplied by the company (if such is the case, for no evidence even in the form of unsworn, never mind sworn statements, has been provided that there was a first Notice of Appearance) did not reach the Employment Tribunal in time and a Notice of Appearance which was received by the Tribunal was out of time.  The Tribunal said that they would consider the validation and extension of time for the purposes of service of that Notice of Appearance at the hearing on 28 June. 

4	Shortly before the hearing Mr Roberts apparently indicated that the hearing date would not be convenient, because he had an unshiftable business appointment.  He did not explain then, or indeed at any time since, save for some few words before us today, what that unshiftable appointment was, and he is, he told us again today, a one-man business, but no explanation has been given as to why he could not at least have made written submissions to the Tribunal if he could not attend himself, or ask someone else or his solicitor, or even a friend, to go to court on his behalf.  At any rate no one did attend on behalf of the company on 28 June.  

5	The Summary Reasons which we have do not expressly deal with the issue of validation of the Notice of Appearance and it may be the answer is that as nobody attended on behalf of the Respondent, the Tribunal simply dealt with the application as not being before them or not being pursued, as no one was there to make it.  It may on the other hand be that there was an implicit rejection of any application for an extension of time, given that it was not supported by anyone or indeed by any explanation or reasons as it stood, as it still has not been today.  

6	But having, if they did make such a decision, made it, the Tribunal then went on to consider the question of unfair dismissal.  Whether they looked at the Notice of Appearance itself, or not, is not clear, although no doubt it would have been in their minds, but in any event, the statement of the Applicant, which was read, and oral evidence given by the Applicant, Mr Knaggs, made it clear that he had been most unsatisfactory in his attendance at the company and that that was the reason why he had been dismissed, because the letter of dismissal formed part of his statement.  

7	The conclusion of the Tribunal was indeed that the Applicant had been unsatisfactory in terms of attendance, and indeed the Tribunal formed the view, even without the benefit of anyone there on behalf of the Respondent, that he would not have lasted any longer in the company, i.e. that a fair dismissal could have taken place shortly after the dismissal did in fact take place, and they gave no compensatory award to the Applicant at all.  The sum that he received was simply the basic award, effectively calculated on a redundancy basis for past attendance, without giving him any compensation for the unfair dismissal which they found, at all.  They then discounted that by 30% on the basis of contribution to dismissal.  

8	It may be that had Mr Roberts, or someone on the company’s behalf, been there, he might have been able to argue for a higher discount or possibly even 100% discount, on the basis of the conclusion of the Tribunal, which was that the dismissal was unfair on procedural grounds, namely that no kind of procedure was followed for monitoring the Applicant’s health or hearing what he had to say about the accusation.  

9	The fact is, however, that nobody was there and there was a decision which it appears to us a reasonable Tribunal could have reached, even had the matter been argued through, albeit it is one which Mr Roberts would have been, and clearly is, unhappy with; but he has appealed that Decision and that is what has come before us, and he has appealed also the refusal, explicit or implicit, to validate the Notice of Appearance.  

10	There was a hearing before this Tribunal on 30 March 2001 by way of a preliminary hearing, when the President allowed the matter to go through, directing that the Summary Reasons were sufficient for the matter to be considered, in any event on the basis that Extended Reasons could not be ordered without there having been the Notice of Appearance, the absence of which was one of the issues in the appeal, and off the case went to a full appeal.  As we have indicated, it was more than a year later when the appeal came on, and at that stage there was no further evidence supplied by Mr Roberts to explain his absence at the original hearing on 28 June and the delay in service of a Notice of Appearance.  Mercifully, and I mean that in its true sense, the President, as we have indicated, gave a further chance to Mr Roberts to come up with an explanation.  There was no appearance or representation by or on behalf of the Respondent, and the President could see, in the event, that prejudice was outweighed by fairness to Mr Roberts.  

11	Having set out the history in paragraph 31 onwards of the judgment, the President indicated precisely what was going to be necessary for Mr Roberts to produce if he wanted his appeal to be considered.  He said, among other things, as follows:
“ …if the company is to have any real prospect of substantive success, it is going to need to put in a good deal of thought and, indeed, a good deal of written evidence; by written evidence we mean sworn affidavits or sworn statements.”
Then the President listed a number of subjects which quite plainly needed to be considered in evidence, and, among the matters which were listed for Mr Roberts’ assistance, and Mr Roberts was there on the day, was included whether there was a first Notice of Appearance, if so when it got sent off and what it said, and whether it was accompanied by anything that indicated dates which the company could or could not cope with as hearing dates and why, if there was a first Notice of Appearance, the second Notice of Appearance was apparently made up from scratch, when it was sent, rather than having a copy of the earlier Notice of Appearance, if it existed, sent instead; and then the learned President indicated that there would need to be explanations as what the “unshiftable other business appointment” was and why, in the alternative to attending himself, there was no written argument provided in the alternative, and why no representative could be sent instead, even if it was difficult or impossible for Mr Roberts to attend.  

12	All those did not need to be spelt out by the President; they are obvious if an explanation was going to be given either as to the late service of the Notice of Appearance or as to the absence of anyone at the hearing.  Today Mr Roberts has attended again, this time with Mr Gill, but none of these matters, indeed no evidence at all, has been still supplied and the appeal has nothing to support it; there is still no explanation as to why the Notice of Appearance was out of time, still no justification as to why there was no one there at the hearing, either to make the application for validation or for an extension of time, or to put forward a case by way of defence on the day, or even to ask for a final adjournment in person, the adjournment having been earlier refused because no sufficient explanation was put forward to support it, and a Notice of Appearance had already been delayed.  

13	Today Mr Gill asked for an adjournment of today’s hearing so that the matters the President indicated ought to have been done could be done; that is an application which Mr Gill made on instructions, and with robustness, but it was plainly unsupportable.  Enough time has been given for this to be done; even apart from the fact that Mr Roberts heard the President say all this, last time it must have been obvious to anybody that if there was going to be an appeal there had to be some material on which to basis it, and there still is none.  So we refused the application for an adjournment.  We then heard the case, which Mr Gill manfully sought to muster, without the additional information, and we conclude there is no basis on which it is arguable at all, and it should therefore not proceed further and should be dismissed.  

14	Whatever might have been the position, whatever explanations might have been available, if any, there has been nearly three years in which they could be put forward and they are still not before us.  The time has come for this litigation which in fact would, but for the Costs Order which we are now invited to make, will only have cost the company, in any event, £721 and must now come to an end, for all the reasons I have given, coupled with the question of proportionality also.  As for costs, it is sad that instead of leaving the matter where it was, and paying out a small sum three years ago, or fighting an appeal and doing it properly, this totally unsatisfactory limbo has been reached of neither paying nor properly fighting, but the fact is that this has cost the Respondent some money.  They sent a letter to the Court in which they anticipated, in a letter of 1 October, that there would be no evidence provided to this Court on 4 October, and they were right in that prediction.  In our opinion, said the Employment Law Advice Unit, the Appellant will not provide any reasonable or relevant submission or evidence to the EAT on 4 October 2002, and these proceedings are therefore unnecessary.  None has been provided.  

15	Mr Gill has submitted that the only costs that ought to be payable to the Respondent are the costs since April 2002.  The Respondents did not attend in April 2002, there was no overt application for costs in April 2002, and thus had the appeal been dismissed in April, then it may well be, in the absence of any application, that there would have been no order for costs in favour of the Respondent, and he, submits Mr Gill, in those circumstances, that the only costs there ought to be are costs since that date which are some £100.  That is clearly a forceful submission but the reality is that, whether they made an application for costs last time or not, they have made it this time.  They made it this time on the basis that because there never was, they say, and certainly three years later, never has turned out to be, any evidence which could support this appeal, it is therefore an appeal which should never have been brought, and never had anything to support it, and therefore it can be said within the Rules that the proceedings have been unnecessary, and on that basis they now seek the whole of their costs in the sum estimated at £1,390.  

16	We conclude that the fair Order to make is one which reflects the fact that it can now be seen that the proceedings were never supported by anything, and still has not been, notwithstanding every opportunity given to Mr Roberts, but which reflects also the fact that there was no application for Costs on the last occasion, and so, to that extent, the Respondents cannot have been expecting the full amount of their costs to be recovered.  We conclude that the appropriate Order is one that the Appellant pays to the Respondents the sum of £500.