Senator Hotels Ltd v Ratkowski

An Employment Tribunal may properly assist an unrepresented party by explaining the issues to be determined and the consequences of choosing not to give evidence. Such assistance does not compromise impartiality. Its manner and extent are ordinarily matters for the Tribunal’s judgment, balanced against fairness to the other party.

There is no general legal duty to ensure that a party adduces evidence, or to adjourn or offer an adjournment merely because that party has failed to comply with a direction to provide witness statements. Where the Tribunal has identified the evidential difficulty and offered an opportunity to give oral evidence, its refusal to take further steps will not ordinarily disclose an error of law.

The employer appealed against an Employment Tribunal judgment of 15 March 2011 which upheld the employee’s unfair-dismissal claim and awarded compensation, including four weeks’ pay under section 38 of the Employment Rights Act 1996.

The employer’s sole director had not served a witness statement despite a case-management direction. He alleged that the Employment Judge had prevented him from giving oral evidence, should have adjourned the hearing, and had been told that the employee conceded redundancy. The Appeal Tribunal conducted its own evidential enquiry into what occurred at the hearing. The central issue was whether the Tribunal’s handling of an unrepresented employer who had not provided evidence disclosed an error of law.

1. Appeal dismissed. The Appeal Tribunal found that the Employment Judge repeatedly made clear that the employer’s director could give oral evidence, explained that the employer would be likely to fail without evidence of the reason for dismissal, and did not confine the director to producing a written witness statement.
2. The director did not offer to answer questions on oath, did not seek an opportunity to give evidence, and did not ask for an adjournment. The employee’s representative did not concede that redundancy was the reason for dismissal. The Tribunal was therefore entitled to decide the case on the evidence before it.
3. Applying Mensah and Radakovits, an Employment Tribunal may assist an unrepresented party by explaining the issues and the importance of adducing evidence. The appropriate degree of assistance is fact-sensitive and must be balanced against fairness to the opposing party. There is no general legal obligation to provide such assistance or to take further steps to secure a party’s evidence.
4. The failure to serve a witness statement did not justify an adjournment in this straightforward claim. Nor was the Tribunal obliged to invite an adjournment expressly, to treat the response form or documents as sworn evidence, or otherwise ensure that the employer adduced evidence. It had already taken a generous and sufficient course by highlighting the evidential problem and offering the director an opportunity to give oral evidence.

• Employment Appeal Tribunal: appeal dismissed.
• Employment Tribunal, Southampton: on 15 March 2011, upheld the unfair-dismissal claim and awarded compensation of £9,090.01, plus four weeks’ pay under section 38 of the Employment Rights Act 1996.