Roberts v Skelmersdale College

Employment Tribunals have a wide discretion when an applicant fails to attend or be represented at a hearing. Under rule 9(3), the Tribunal may adjourn, dismiss, or otherwise dispose of the application after considering the specified documents. It has no duty to investigate the merits, hear the respondent’s evidence, or determine whether the dismissal was fair. The rule requires consideration of those documents, but not “due consideration” as an additional requirement. Reasons must explain why the Tribunal reached its decision, although they need not address every point raised. An appellate court should interfere only for an error of principle, failure to take relevant matters into account, reliance on irrelevant matters, or a plainly wrong balancing of factors.

Mr Roberts, a college technician, brought proceedings including a complaint of unfair dismissal. His other claims were struck out for want of prosecution. When the unfair dismissal claim was listed, he did not attend and was not represented. The Employment Tribunal dismissed the claim under rule 9(3) of the Employment Tribunal (Constitution and Rules of Procedure etc) Regulations 1993, having considered the relevant documents.

The Employment Appeal Tribunal majority allowed his appeal. It held that the Employment Tribunal had given inadequate reasons and had failed to treat consideration of the specified documents as a statutory pre-condition requiring proper or due consideration. The college appealed. The central issues were the scope of the discretion under rule 9(3), the need to hear evidence on the merits, and the adequacy of the Employment Tribunal’s reasons.

1. Appeal allowed. The Employment Appeal Tribunal should have dismissed Mr Roberts’s appeal. His application to reinstate his permission application was refused, and costs were ordered in the sum of £7,000 plus VAT.
2. Rule 9(3) conferred a wide discretion where a party failed to attend or be represented. In the case of an absent applicant, the Employment Tribunal could adjourn, dismiss, or otherwise dispose of the application. Before exercising that discretion, it had to consider the originating application, notice of appearance, written representations under rule 8(5), and any written answer under rule 4(3).
3. The rule did not require the Tribunal to investigate the case of its own motion, hear the respondent’s evidence, or determine whether the dismissal was fair and reasonable. The Tribunal could require evidence and submissions, but was not obliged to do so.
4. The Employment Tribunal had given adequate reasons. Read as a whole, its extended reasons explained the procedural history, Mr Roberts’s knowledge of the hearing, the opportunities given to him to seek a postponement, his failure to attend, and his failure to give an adequate reason. The final reference to dismissal for non-attendance did not confine the decision to that fact in isolation.
5. The Employment Appeal Tribunal majority erred by restricting the discretion under rule 9(3) and by treating “due consideration” as required. That expression added a gloss to the rule, which required consideration of the specified documents but imposed no duty to hear evidence or submissions on the merits. The Employment Tribunal’s decision was not plainly wrong and disclosed no error of principle or failure to consider relevant matters.

• Employment Tribunal: Dismissed Mr Roberts’s unfair dismissal claim in his absence under rule 9(3) of the Employment Tribunal (Constitution and Rules of Procedure etc) Regulations 1993.
• Employment Appeal Tribunal: By majority, allowed Mr Roberts’s appeal and remitted the unfair dismissal claim to a differently constituted Tribunal.
• Court of Appeal (Civil Division): Allowed the college’s appeal, restored the effect of the Employment Tribunal’s dismissal, and refused Mr Roberts’s reinstatement application.