Brindle v Fylde Motor Co Ltd

Where a party fails to attend an Employment Tribunal hearing and the Tribunal proceeds to dispose of the proceedings, the Tribunal must consider information in its possession that has been made available by the parties. Rule 27(6) does not require consideration of material that neither party has supplied.

The Tribunal has no general duty to investigate the case or obtain an absent party’s witness statements or documents from the opposing party. The Employment Tribunal system remains adversarial. The primary duty to present relevant evidence rests with the parties, although appropriate assistance may be given to litigants in person.

The claimant appealed against the dismissal of claims for constructive unfair dismissal, unauthorised deduction from wages and holiday pay. The Employment Judge proceeded in her absence and determined the claims on their merits using the claimant’s pleadings and the respondent’s evidence and bundle, but not the claimant’s separate witness statement or bundle.

The appeal was permitted to proceed on the narrow issue whether Rule 27(6) of the ET Rules 2004 required the Employment Judge to ask the respondent for copies of documents exchanged by the claimant, or required the respondent to provide them.

1. The appeal was dismissed. The Employment Judge had complied with Rule 27(6) by considering the information in his possession that had been made available by the parties. The rule did not require him to consider material supplied to neither the Tribunal nor, in the relevant form, the respondent.

2. The wording of Rule 27(6) differed materially from Rule 9(3) of the 1993 Rules. The earlier provision, considered in Roberts v Skelmersdale College [2003] ICR 1127, required consideration of specified documents. It did not impose a duty to investigate the case or assess the merits of the defence. The later rule required consideration of information already in the Tribunal’s possession and made available by the parties.

3. There was no obligation on the Employment Judge to enquire whether the respondent held copies of the claimant’s exchanged witness statements or documents. The Tribunal system remained adversarial, not inquisitorial. The duty to present relevant evidence lay with the parties, subject to the Tribunal giving appropriate assistance where an unrepresented party was manifestly unfamiliar with legal procedure. The observation in Craig v British Railways (Scottish Region) [1978] 8 ITR 636 applied equally under the current rules.

4. In the circumstances, neither Rule 27(6), natural justice nor the overriding objective required the respondent to make the claimant’s material available to the Employment Judge.

• Employment Appeal Tribunal: The appeal against the Employment Tribunal’s judgment dated 18 February 2013, with written reasons dated 27 March 2013, was dismissed.
• Employment Tribunal: Employment Judge Bright proceeded in the claimant’s absence and dismissed the claims on their merits.