Dimitriu v Testerworld Ltd (t/a De Pharmaceutical)

An Employment Appeal Tribunal may interfere with an Employment Tribunal’s case-management decision only for an error of legal principle or a perverse outcome. Fairness must be assessed in the round, having regard to both parties, rather than being determined solely by the position of an absent party.

Where a party fails to attend, the Employment Tribunal may act on reliable oral information obtained by its staff and must consider information practicably available about the absence. A party who knows of a hearing must communicate promptly and provide a satisfactory explanation if attendance becomes difficult. The Tribunal is entitled to proceed where the information supports the conclusion that the absence was without good reason.

The Claimant brought complaints including notice pay and discrimination after her unfair-dismissal complaint had been struck out. At a subsequent final hearing, neither the Claimant nor her husband and representative attended, although the Respondent and its witnesses did attend.

After an Employment Tribunal clerk contacted the husband, the Tribunal dismissed the remaining claims for failure, without good reason, to attend. The Employment Judge later refused reconsideration. The Claimant appealed, alleging errors concerning childcare arrangements, the finding that she chose not to attend, reliance on the clerk’s account, and failure to adjourn.

The central issue was whether the Tribunal had erred in law in dismissing the claims and refusing reconsideration.

1. Appeal dismissed. The Employment Tribunal and Employment Judge were entitled to conclude that the Claimant had failed, without good reason, to attend the final hearing.

2. Applying Transport for London v O’Cathail [2013] EWCA Civ 21, the appellate question was not whether the Employment Appeal Tribunal would itself have adjourned. It was whether the Tribunal had erred in principle, omitted a relevant matter, considered an irrelevant matter, or reached a perverse conclusion. Fairness required consideration of the Claimant, the Respondent, and the efficient determination of proceedings.

3. The Tribunal had sufficient grounds to find that satisfactory childcare arrangements had not been demonstrated. At the original hearing it knew that the Claimant was at work, the child was unwell, and the husband was caring for the child. On reconsideration, it could also take account of the delayed and inconsistent explanations, the absence of evidence that the husband could not care for the child, and the Claimant’s failure to contact the Tribunal or attend to explain the difficulty.

4. The finding that the Claimant had chosen not to attend was open to the Tribunal. It rested on several matters, not merely her attendance at work. The Tribunal was also entitled to rely on the substantially undisputed oral information relayed by its clerk.

5. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, rule 47 required the Tribunal to consider practicably available information about an absent party’s reasons. The Tribunal had made enquiries and was entitled to consider the information received, although it was not in writing. The reconsideration decision addressed the same matters material to an adjournment, so no separate express reference to adjournment was required.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal from the dismissal of her remaining claims and the refusal of reconsideration.
• Employment Tribunal: dismissed the remaining claims on 22 October 2018 for failure, without good reason, to attend the hearing. On 28 November 2018, it refused reconsideration.