Non-attendance

Case 7: The facts

Three employees issued claims after being made redundant when the contract they were working under was taken over. Two of them attended a tribunal hearing, where they won claims for notice pay and failure to consult under TUPE but lost their redundancy claims. The tribunal dismissed all the third claimant's claims because he had not attended nor given evidence.

The ruling

The Employment Appeal Tribunal noted that the solicitor who attended the hearing had represented all the claimants. A tribunal can dismiss a claim if a party fails to attend in person or by representative, but it must first consider whether dismissal is appropriate. It can also adjourn the hearing or hear the case in the party's absence as an alternative.

In this case, there was no evidence that the tribunal had considered any alternatives to dismissing the claim. But in any event it should not have considered dismissal at all, because the claimant's representative was present at the hearing.

Fairclough and others v John Reilly Civil Engineering Ltd UKEAT/0386/06