Although tribunals have a wide discretion when it comes to deciding whether to go ahead with a hearing in the absence of one of the parties, the EAT held in Brooks v Pleteni and ors that the tribunal should not have allowed the final hearing to go ahead in Ms Brooks’ absence as it meant that she was not given the chance to respond to the claim that she was Ms Pleteni’s employer.
Ms Pleteni worked as a waitress at the Wellington Club in London from early September 2019 until 18 October 2019. She then lodged a number of tribunal claims citing the club, Nicola Brooks, and a company called Asser Ltd (the name which appeared on her payslips and which she said was her employer) as respondents.
At a preliminary hearing, Ms Pleteni was allowed to amend her claim to add ''Ms Nicola Brooks T/A The Wellington Club'' and ''Mr Jake Panayiotou T/A The Wellington Club” as respondents on the basis that they had formed the club as a partnership and were her employers. Although Ms Pleteni had cited Ms Brooks as a respondent on her initial claim form, it was not in her capacity as employer.
None of the respondents attended the hearing, although Ms Brooks had filed a response to the claim which did not indicate that she was Ms Pleteni’s employer. On that form, she gave the club as her address but when it closed in March 2020, she failed to provide the tribunal with an updated address for any correspondence.
At the final hearing, which was not attended by any of the respondents, the judge decided that Ms Brooks was trading as the Wellington Club and was, therefore, Ms Pleteni’s employer. She made findings of unlawful deductions totalling £320 and of sex harassment and victimisation, awarding compensation of £12,000 plus interest and £1,680 for loss of earnings plus interest.
Ms Brooks appealed, saying that she had not attended the hearing because she did not know it was going to happen. She argued that the judge should not have allowed the claim to be amended at the preliminary hearing, nor should she have allowed the final hearing to go ahead. She was also wrong to decide at that hearing that she was Ms Pleteni’s employer.
Acknowledging that tribunals have a wide discretion when there is an unexplained failure to attend by one party, the EAT accepted, nevertheless, that as a litigant in person, Ms Brooks might not have understood the danger of not providing an up-to-date address. As such, she had not understood that the judge might find against her.
Although it was not the judge’s fault that Ms Brooks did not attend the hearing, it nevertheless undermined the discretion that she was allowed to exercise. Not only was Ms Brooks not there to defend herself, but she had not had the chance to respond to the claim that she was Ms Pleteni’s employer. In those circumstances, the EAT concluded that the resulting hearing was unfair.
As for allowing the claim to be amended, the EAT held that the tribunal should not have done so as it was not sufficiently particularised. According to the decision in British Gas Services Ltd v Basra, tribunals must ensure that amendments are “properly formulated, sufficiently particularised, so the respondent can make submissions and know the case it is required to meet”. Apart from anything else, Ms Pleteni had not provided any evidence that Ms Brooks and Mr Panayiotou had formed a partnership to operate the club.
The EAT therefore remitted the claim to a differently constituted tribunal to reconsider these issues.
This is an interesting judgment given that, quite often, where a party does not attend a hearing and gives no reason for non-attendance, the hearing will proceed in their absence and judgment made accordingly. The fact that Ms Brooks was a litigant in person would have no doubt influenced the EAT’s decision and one would expect similar leniency to a claimant litigant in person, although tribunals are often more lenient to respondents, as demonstrated by their willingness to allow (often considerably) late responses to claims.