Another Friday is upon us which means it is time for another case law update. A look at some recent judgments showed some very technical and convoluted cases which would frankly make for boring reading. Given this week’s easing of the lockdown restrictions was confusing enough – does anyone else feel that if Boris Johnson gave you directions he would tell you bear 20 degrees upwards for 15 kilograms? –this week’s case will be simple.
Before starting this week’s case, we would also like to remind everyone we are posting regular employment law related COVID-19 posts on our blog. Phil is also posting a plethora of COVID content (not all employment law related) on his medium page. Anyone at a loose end looking to count down the hours until quitting time may find these the perfect forms of procrastination.
Last week we looked at limitation dates and whether or not it was sensible to spend in inordinate amount of time and cost appealing relatively trivial ET decisions. This week, in a recurring theme of lockdown case law updates, we are looking at tribunal procedure. As with a previous case on ET procedure, there is no question, it is more just an examination of how things can go wrong
Dimitriu v Testerworld Ltd
Mrs Dimitriu, the Claimant, was dismissed by Testerworld Ltd, the Respondent. The Claimant presented claims for unfair dismissal, failure to pay notice and discrimination. The Claimant listed her husband, who was not legally qualified, as her representative on her ET1 form.
The ET believed the unfair dismissal claim had little prospect of success based on the facts of the case and the Claimant having less than two years’ continuous service. A strike out hearing was held which the Claimant did not attend. The unfair dismissal claim was struck out and the Claimant did not appeal.
The remaining claims proceeded and both parties attended a further preliminary hearing to set directions, including the final hearing date. The Claimant did not attend the final hearing, nor did she or her husband contact the Tribunal to inform them they would not be able to attend.
A Tribunal clerk contacted the Claimant’s husband. He informed the ET that he was looking after his son who was unwell and the Claimant was at work but hoped to be able to attend in a couple of hours’ time.
The ET proceeded to dismiss the claim due to the Claimant’s failure to attend the hearing. A costs award was also made as the non-attendance was without good reason. After an application for reconsideration was refused, the Claimant appealed.
The EAT dismissed the appeal. It was not the Tribunal’s duty to consider impermissible factors such as the Claimant’s son being ill, it was up to the Claimant to notify the ET and the Respondent of this so arrangements could be made.
The takeaway point:
Once again,assuming the ostrich method of addressing position has caused a party to aggravate an already weak position, the hole was big but the party kept digging. Had the Claimant notified the ET of her son’s illness there is a good chance the ET would have postponed the hearing, or, at least not made an award for costs.
In any event, the illness could be considered less decisive than the Claimant not booking the day of the hearing off work. I can imagine some judges would turn a worrying shade of red if they found out a Claimant would try to attend a hearing hours late and requested if the ET could wait for them.
Ultimately, when a hearing is given a date and a start time of 10.00am, this is an order, not a target. For the Respondent in this case, the adage about arriving at the battlefield early was not true, they merely had to arrive!