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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lynx Press Ltd v. Morgan & Anor [2002] UKEAT 0830_01_2301 (23 January 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0830_01_2301.html Cite as: [2002] UKEAT 830_1_2301, [2002] UKEAT 0830_01_2301

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APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR RECORDER LANGSTAFF QC

1. This is a Preliminary Hearing in an appeal from the Employment Tribunal sitting at London Central whose Extended Reasons were promulgated on 19 May 2001. That Tribunal found that the employee Respondents had been unfairly dismissed. It awarded Mr Morgan the sum of £20, 253.84 and Mr Warr £61, 134. It further awarded costs of £500 to be paid to them.
2. It heard the case over two days, 8 January 2001 and 24 April 2001. On the first day it heard the evidence of Mr Morgan and Mr Warr and both were cross-examined. A second day was fixed for 18 January. The day before, it was said, on behalf of the Appellant, that none of the three persons critical to its case was available, two had flu and the wife of the other was giving birth. The Tribunal agreed to postpone the hearing but required the Respondents to submit a copy of the medical certificate of a Mr Duff, who was one of the two said to be suffering from flu. As it happens, no certificate was ever provided.
3. The appeal does not deal with the merits of the case, nor does it make any assertion that the Tribunal was not entitled upon the evidence it heard to come to the conclusion it did. Rather, it concerns the Tribunal resuming its hearing of the case (upon the date to which the Tribunal adjourned its hearing) in the absence of the Appellants. After the postponement of
   18 January hearing, notice of the resumed hearing was sent out from the Tribunal' office. Nonetheless when it came on for determination on 24 April nobody appeared from the Appellant in order to give their side of the story. Perhaps because there had been no attendance, the Appellants sought a review. They did so by letter dated 27 June 2001 in which it was asserted that no notice of the hearing had been received. The Tribunal in its decision indicated that it had been told by one of the employees that, indeed, he had spoken to Mr Sears, an employee of the Appellants, telling him of the date of the hearing. That evidence to the Tribunal was denied by the Appellant.
4. We are faced today with the situation in which no one from the Appellant has arrived in order to progress the appeal. We have decided in the exercise of our discretion in the matter to hear and determine this appeal in the absence of the Appellants. We note that they have been informed, indeed, they sought this appeal. We are told that a representative of the ELAAS Scheme telephoned in order to ascertain where any representative of the company might be but was met with an answerphone. We conclude therefore, in the absence of evidence to the contrary, that there has been proper notice of these proceedings and we shall go ahead.
5. The procedure at the hearing was governed by Rule 9 sub-rule 3 of the Employment Tribunals Regulations 1993 which permits a Tribunal to continue to hear a case even if a party should fail to attend or to be represented at the time and place fixed for hearing, providing that before dismissing or disposing of any application it should consider the Originating Application or Notice of Appearance, any representations in writing presented and any written answer furnished to the Tribunal. There is no evidence that the Tribunal failed to do anything it was required to do by that Rule. That Rule provides a discretion to the Tribunal. We see no basis for interfering with that discretion. We would have to identify an error of law in its approach to do so. We can see none.
6. The review which was sought was dealt with under Rule 11(4) of the Tribunal Rules which provides, in the material parts, that an application may be made at any time from the date of the hearing until fourteen days after the date on which the decision was sent to the parties. The Chairman, when he received the application for a review based upon the grounds of absence of one of the parties, which is the ground under Rule 11(1)(b), determined, as he was bound to determine, that it was too late. It had not been made within the fourteen days required by the Rule.
7. Accordingly, since we can see no basis on which this Employment Tribunal was in error in taking the steps that it did to hear the matter in the absence of the Appellants, it follows that there is no basis upon which this appeal raises any arguable point of law. It must be, and is, dismissed.