Haziz Rahim v The Commissioner of Police of The Metropolis

A tribunal is not required to determine an application for remote attendance which was not clearly made or pursued at the hearing. Where a represented party considers that an outstanding application affects the fairness of the hearing, the representative must raise it and obtain a ruling. A tribunal cannot be criticised for failing to address a matter of which it was not alerted.

Non-compliance with a procedural requirement to copy correspondence to the other party does not itself carry an automatic sanction where the rules prescribe none. Clear, unified communication through either the party or the representative is important to orderly tribunal procedure.

The claimant, a former probationer police constable, brought claims including race and religion or belief discrimination. The Employment Tribunal struck out the discrimination claims as out of time following an open preliminary hearing on 23 October 2019. The claimant was abroad in Afghanistan and did not attend, although represented counsel attended on his behalf.

He appealed on the limited ground that the Tribunal’s failure to arrange video attendance or postpone the hearing made the hearing unfair and prevented effective participation. The appeal concerned whether a clear request for video attendance at that preliminary hearing had been made and, if so, whether the Tribunal was required to determine it.

1. Appeal dismissed. The Employment Tribunal made no error of law in proceeding with the preliminary hearing without arranging the claimant’s attendance by video link.

2. The claimant’s solicitor’s letter of 7 October 2019 sought a postponement, not remote attendance. The claimant’s later emails were not clear requests for the preliminary hearing to be conducted remotely. They presented several uncertain alternatives: determination in his absence, a lengthy postponement, or video attendance.

3. Even giving the claimant the benefit of the doubt that the emails amounted to a request, his representative did not pursue any application for a postponement, video link, or short adjournment at the hearing. A party with an outstanding application must raise it with the Tribunal and ensure that a decision is obtained. The Tribunal could not be faulted for failing to decide a matter which had not been raised or identified as outstanding.

4. The reference in the Employment Judge’s order to the impracticability of video evidence concerned a possible future substantive hearing, not the preliminary hearing. Any issue about video evidence at a future hearing became academic once the discrimination claims had been struck out.

5. The claimant’s failure to copy his emails to the respondent breached the applicable procedural requirement, but the rule imposed no automatic sanction. Nothing turned on that breach on these facts. The court also stressed the need for clear communication through one voice where a party is represented.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 3.
• Employment Tribunal, London Central: Employment Judge Hildebrand struck out the discrimination claims as out of time in a judgment sent to the parties on 30 October 2019.