Metro Lodgings Ltd v Warley

An Employment Tribunal may proceed in a respondent’s absence where a postponement request is made late, the asserted obstacle to attendance was foreseeable, and the respondent could reasonably have arranged alternative representation. The Tribunal must apply the overriding objective and may conclude that further delay is not in the interests of justice.

A respondent who elects not to attend cannot ordinarily establish prejudice merely because the Tribunal receives the claimant’s oral and documentary evidence. An appellate challenge will fail where the respondent does not produce the documents needed to show an error in the Tribunal’s case-management decision or factual finding.

The claimant, a hotel receptionist, brought claims for unauthorised deductions from wages and for failure to provide a written statement of employment particulars. The Employment Tribunal at North Shields proceeded in the respondent company’s absence after refusing late applications to postpone the hearing. It upheld the claims and awarded £2,280.97.

The company appealed, contending that the hearing should have been postponed, that the Tribunal should not have accepted documents produced by the claimant, and that it had provided a section 1 statement. Although the appeal was permitted to proceed on those grounds, the company did not comply with directions to provide the relevant material and did not attend the appeal hearing. The central issue was whether the Tribunal had erred in proceeding and in its related case-management and factual decisions.

1. Appeal dismissed. The Employment Tribunal made a permissible decision to proceed in the company’s absence.

2. The request for postponement was made at 15.40 on the day before the hearing. The company had relied on an employee who had been seriously unwell and unfit to attend a tribunal for a substantial period. Her inability to attend should therefore have been apparent well before the hearing.

3. As a limited company, the respondent could reasonably have arranged attendance by a director or professional representative. It chose not to do so. The Tribunal was entitled, consistently with the overriding objective, to conclude that a further delay would not serve the interests of justice.

4. The Tribunal’s acceptance of the claimant’s evidence caused no relevant procedural prejudice. The company could reasonably have anticipated oral and documentary evidence in support of the claims. Its inability to address that material resulted from its own failure to make reasonable arrangements to attend. It also failed to provide the Employment Appeal Tribunal with the directions and correspondence said to bear on disclosure.

5. There was no basis to disturb the finding that the claimant had not received a written statement under section 1 of the Employment Rights Act 1996. The company did not provide the alleged statement or evidence that it had been given to the claimant and placed before the Tribunal.

• Employment Appeal Tribunal: Appeal dismissed: [2019] UKEAT 0023_19_2706.
• Employment Tribunal, North Shields: On 29 August 2018, Employment Judge Morris upheld claims for unauthorised deductions and breach of the duty under section 1 of the Employment Rights Act 1996, awarding £2,280.97.