United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G WATSON (of Counsel) Instructed By: Mrs S J Whitemore Messrs Warner Goodman & Streat Solicitors 8/9 College Place London Road Southampton SO15 2FF
For the Respondents	MR B CARR (of Counsel) Instructed By: Mr E Farrelly Messrs Eversheds Solicitors London Scottish House 24 Mount Street Manchester M2 3DB


 


JUDGE WILSON: This has been the final argument in the appeal by the Appellant against the refusal of the Employment Tribunal Chairman, sitting by himself, to extend time to entertain an application for a review of the original decision of the Tribunal. The decision had been promulgated on 2 or 3 July 1998, and dismissed the application by the Appellant; and an order that she pay costs because she was deemed to have acted frivolously and unreasonably in bringing the proceedings.

1. The costs were ordered under rule 12(6) of the Regulations, to be taxed in the County Court on scale 3. The Employment Appeal Tribunal gave leave at the ex-parte preliminary hearing for the appeal to go forward, and made various other orders which have all been fulfilled and we have had the benefit of skeleton arguments from Mr Watson on behalf of the Appellant and from Mr Carr on behalf of the Respondent. The way in which the matter is put for the Appellant is by reference to rule 11(1)(b) and (e) of the Regulations 1993 found in schedule 1. That is to say that the party (Appellant) did not receive notice of the proceedings leading to the decision, and that the interests of justice required a review.
2. At all material times, it is not in dispute that the Appellant was being advised and represented by Mr Gillings of the Southampton Racial Equality Centre. It is equally clear from the body of the papers, that he was well informed about all practical matters at all stages leading up to the date given for the hearing. On 2 July 1998, there was no appearance by the Appellant or by her Representative. The case had been listed for two days and it was the unanimous decision of the Tribunal that the matter should be dismissed under rule 9(3). Thereafter the question of costs was dealt with as I have indicated.
3. The question of notice is dealt with in regulation 20(3)(c) the relevant part of which provides as follows:

"All notices and documents required or authorised by these rules to be sent or given to any person herein after mentioned may be sent by post or delivered to or at…

c) In the case of a notice or document directed to a party

(i) the address specified in his originating application or notice of appearance to which notices and documents are to be sent, or in a notice under paragraph 4"

When one has regard to the Originating Application in this matter, one finds that the address given is that of Mr Gillings. At no stage was it changed, or suggested that it should be changed. As I say, from the papers in the large bundle with which the Tribunal has been provided, Mr Gillings was clearly in touch with the Appellant right up to the eve of the date given for the proceedings to be heard. What he was telling her may well be another matter, but it is not a matter with which either this Tribunal or the Employment Tribunal can be concerned.

4. At all events, there came a time when the Appellant learned of the dismissal of her application. What has never been revealed, and is certainly not revealed in the papers before us, or anywhere else, is how, in the circumstances, the Appellant got to know about the dismissal of the application on 16 August. However that may be, she changed her advisors and consulted her union, the Transport and General Workers. They sent a letter requesting a review, dated 17 August 1998. That letter is in the bundle at page 39 and makes no reference to the sort of thing that one would have expected, namely an application for an extension of time with a reason, and a reference to the fact that an order for costs had been made without the Appellant having been heard.
5. It is the Chairman's decision to refuse an extension of time and to hold that there was no reasonable prospect of success anyway, which is appealed today. There has been no appeal at any stage by any of the three advisors that the Appellant has had, against the original decision to dismiss her application. The refusal by the Chairman is criticised on two grounds. First of all, that in the interests of justice it was perverse not to extend time, and secondly, that his sitting alone is contrary to what was said in the Employment Appeal Tribunal decision in Hancock v Middleton [1982] ICR 416. At page 419F, Neill J said:

"In the present case Mr Hand submits that it cannot be right for a chairman, in circumstances where the application for a review is saying that he did not receive notice of the hearing and that the decision was made in his absence, to exercise his powers under rule 10 (3) [now rule 11(5)] and to come the conclusion that the application had no reasonable prospect of success. It seems to us that Mr Hand is right about this. The employer's contention is : "The decision has come as a total surprise, as I have had no papers on this matter; I did not get notice of the proceedings leading to the decision; I did not get the decision itself until a month after it was posted and I had moved my address from that which I had formerly been at." It seems to us that there is material for a tribunal to investigate to decide whether or not the matter should be reheard or whatever other order should be made. It was not, in our judgment, a case which was suitable to be dealt with by the chairman alone acting under rule 10 (3)."

Rule 10 (3) now is enshrined in rule 11 (5) which provides that an application for the purposes of paragraph 1, that is to say, to review, may be refused by the Chairman of the Tribunal which decided the case if in his opinion it has no reasonable prospect of success.

6. That is what this Chairman concluded on the material before him which was contained in the letter of 17 August 1998 from the Transport and General Workers Union. We distinguish the judgment in the case of Hancock v Middleton because it seems to us that it is fundamentally different on its facts. We have to say that we find that what is set out in the Extended Reasons given by the Chairman for refusing a review in paragraph 3, succinctly states the position in law. He said:

"The power of Employment Tribunals to review their own Decisions is strictly limited in scope and confined to five specified grounds. It is clear that the Applicant's named representative at the time, Mr Gillings, had received notice of the two-day hearing to commence on 2 July 1998 because he unsuccessfully applied for the postponement of that hearing. The ground relied upon for this review is the unsatisfactory way that the case was dealt with by the Applicant's representative. If that is the case, the Applicant may have a remedy elsewhere, but such a complaint does not constitute grounds for a review under Rule 11. The power to review must be cautiously exercised. The facts in this case cannot be viewed as a procedural mishap such as to constitute a denial of a fair opportunity to bring a claim where, for example, a party or party's named representative does not receive notice of the proceedings."

In this case there is no dispute that the Appellant's representative did receive notice of the proceedings and we consider that there is every reason to support the Chairman's view that the power to review has to be cautiously exercised. If it is not, then the floodgates might well be opened.

7. We have considerable sympathy for the Appellant because she was clearly, very badly served by the Representative of the Southampton Racial Equality Council. Furthermore, she seems to have been, to put it neutrally incompetently advised by the Transport and General Workers Union, and also by the Southampton City Council Racial Equality and Discrimination Service, who put in the letter of 8 September which has served as a Notice of Appeal. However those matters may be, and wherever else she may have a remedy, it is not by reversing this Chairman's decision, and accordingly, the appeal is dismissed.