Hibbert v Apple Europe Ltd

When a litigant cannot attend an Employment Tribunal hearing for a genuine reason beyond his control, the Tribunal must consider the effect of proceeding in his absence on the fairness of the hearing. Under rule 27(5), it must balance that factor against inconvenience, delay, available evidence and the interests of the other party. A failure to consider the inability to attend is an error of law. A later review application may provide an opportunity to correct the error, but a summary rejection which prevents reconsideration does not do so.

The claimant appealed against decisions of the Watford Employment Tribunal concerning his unfair dismissal and holiday pay claims. The Tribunal proceeded with the substantive hearing in his absence after he notified it that his ten-month-old daughter was unwell and attending hospital. It found the dismissal automatically unfair under section 98A(1) of the Employment Rights Act 1996, but made no compensation award. The claimant’s subsequent review applications were summarily rejected.

The central issue was whether the Tribunal had lawfully exercised its discretion under rule 27(5) when it proceeded without considering the claimant’s inability to attend for a genuine reason, and whether the review procedure had cured any error.

1. The appeal was allowed. The Tribunal had considered factors favouring proceeding with the hearing, including previous postponements, the age of the claim, the presence of the respondent’s witnesses and the available documentary evidence. It had not, however, balanced those factors against the claimant’s genuine inability to attend because he had to take his sick child to hospital. That omission was an error of law.

2. The principle stated in Teinaz v London Borough of Wandsworth [2002] IRLR 721 applies where the Tribunal is considering whether to adjourn under rule 27(5), even if the claimant did not use the precise word postponement. A litigant whose presence is needed for a fair trial and who cannot attend through no fault of his own will usually require an adjournment, provided the inability to attend is genuine. The Tribunal must weigh the fair-hearing consequence of proceeding in the litigant’s absence against the competing circumstances.

3. The approaches in Holland v Cyprane Ltd [1977] ICR 355 and Cooke v Glenrose Fish Company Limited [2004] ICR 1188 supported that analysis. The claimant’s review applications gave the full Tribunal an opportunity to reconsider the decision, but the Employment Judge’s summary rejection prevented that reconsideration. The error was therefore not cured, consistently with Cooke.

4. Under section 35(1) of the Employment Tribunals Act 1996, the question of remedy was remitted to a fresh Tribunal. It was directed to consider whether the dismissal was substantively fair or unfair for compensation purposes, together with the issues arising under the principle in Polkey v A E Dayton Services Ltd [1987] IRLR 503, contribution and mitigation of loss.

• Employment Appeal Tribunal: allowed the appeal against the Watford Employment Tribunal’s decision and remitted the question of remedy to a fresh Tribunal.
• Watford Employment Tribunal: proceeded with the substantive hearing in the claimant’s absence, found the dismissal automatically unfair under section 98A(1) of the Employment Rights Act 1996, made no compensation award and summarily rejected two review applications.