D Hibbert v Apple Europe Ltd

Facts

The appellant (H) appealed against a decision of an employment tribunal to hear in his absence his complaint of unfair dismissal against the respondent (R).

R had dismissed H in circumstances amounting to a dismissal under the Employment Rights Act 1996 s.95(1). H presented a complaint of unfair dismissal and a claim for unpaid holiday pay. The case was heard in his absence on October 6, 2010. Before that date the case had been adjourned five times, once by reason of H's ill health and twice because of the unavailability of R's witnesses. On October 6, H, who was a single parent, was not able to attend the hearing because he had to take his young daughter to hospital. He informed the tribunal that morning by email and had a rushed telephone conversation with the clerk. He did not expressly request an adjournment. The tribunal exercised its discretion under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.27 to hear the case in his absence. It found that although his dismissal was automatically unfair, that there would be no basic or compensatory award. It dismissed his claim for holiday pay. H made two applications for review. Both were rejected.

Held

It was common ground that H had a genuine reason for his non-attendance. While the tribunal had, in deciding to proceed with the hearing, considered a number of factors that plainly pointed in the direction of proceeding, it had not added to the balance the fact that H had a good reason for being unable to attend. That was an error of law, Teinaz v Wandsworth LBC [2002] EWCA Civ 1040, [2002] I.C.R. 1471 followed. Even though H had not expressly requested an adjournment, the tribunal was required by Sch.1 para.27(5)of the Regulations to consider granting one. In considering the matter it had been incumbent on the tribunal to weigh in the balance H's inability to attend and its possible effect on his right to a fair hearing. The matter had not been put right on review and the case would therefore be remitted to a fresh tribunal (see paras 9-12 of judgment).

Appeal allowed.

Comment

In the circumstances, an employment tribunal ought not to have determined a claim in the absence of the claimant. The claimant had a good reason for his non-attendance and the tribunal ought to have considered adjourning the matter.

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