United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS YVETTE GENN (of Counsel - Bar Pro Bono Unit)
For the Respondent	RESPONDENT DEBARRED


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is the hearing of an appeal by the Appellant employer, Mr Bolch, against the decision of the Employment Tribunal at Norwich on 19 July 2002. On that day the Tribunal made two decisions: first, that the appearance entered by Mr Bolch to the claim by the Applicant, Mr Chipman, for unfair dismissal should be struck out on the basis that the proceedings had been conducted by Mr Bolch in a way that was unreasonable; and, the appearance having been struck out, the Tribunal then refused to hear the Appellant, who was present with witnesses, and effectively in his absence, though he was in fact present, the Tribunal concluded that Mr Chipman had been unfairly dismissed. The appeal is to set aside both those decisions.
2. The matter came on before this Tribunal, differently constituted although chaired by the President, on 22 January 2003, by way of a Preliminary Hearing when the Appellant was then represented by Counsel instructed under the ELAAS Scheme, and we gave permission for this appeal to proceed.
3. There was an order that the Respondent file an Answer. Unfortunately the Respondent, Mr Chipman, did not file an answer; and so he has been debarred from resisting this appeal. That consideration of course is given quite separately and simply by virtue of addressing the absence of an Answer, and an order is then made by the Registrar, as it has been.
4. The result is that today there has been the Appellant's case put forward before us by Miss Yvette Genn instructed by the Bar Pro Bono Unit, and Mr Chipman it is this time who has not been in a position to resist the appeal, although at least on this occasion we have not had the same position as took place below of the debarred party sitting in court and not being allowed to say anything.
5. We must decide this issue now on its merits in the light of the very helpful submissions which Miss Genn has made on the Appellant's behalf, notwithstanding the non-participation of Mr Chipman at this stage.
6. The circumstances of the matter are clear. Mr Chipman launched his Originating Application on 6 September 2001 and a Notice of Appearance was filed by Mr Bolch on 1 October 2001. In his Notice of Appearance, apart from denying unfair dismissal and asserting a redundancy situation, Mr Bolch took the point that in fact there had not been sufficient length of service by Mr Chipman as an employee of Mr Bolch personally, Mr Chipman having previously been employed, on Mr Bolch's case, by a company of which Mr Bolch was the Director. That issue was tried by the Tribunal at Norwich on 11 February 2002 and the jurisdictional question was resolved against Mr Bolch and in favour of Mr Chipman, by summary reasons delivered on 28 February 2002.
7. Mr Bolch applied, initially, for a review of that decision and subsequently by way of an appeal, which was only dismissed in January 2003; but meanwhile, the substantive application was to be listed for hearing at Norwich on 28 May. However, no notice of that hearing of 28 May was ever received by Mr Bolch, in circumstances to which we will refer in a moment.
8. Meanwhile, there was a letter sent by the Respondent to the Tribunal on 12 April 2002 which made allegations against the Appellant. A number of matters were alleged about debt collectors allegedly calling at Mr Chipman's house, instigated by Mr Bolch, but the substantive allegation, what Mr Chipman called in his letter "the last episode", was an alleged threat said to have been heard by Mr Chipman's partner, Mrs Mills, and another person. That threat is not described in the letter but simply the following statement was made:

"…our last encounter was an out and out threat to my well being and I am at a loss as to how to handle it."

The letter asserted:

"I have been to the police station and given them a statement just in case, and they did say they would have a word with Mr Bolch about the threat, but I feel that as nothing actually happened apart from just threatening words there is not a lot that they can do any way."

9. Whether in fact Mr Chipman did go to the police was subsequently put in issue by Mr Bolch in the hearing which occurred (in circumstances to which we will refer) in July, and he was not able to produce any evidence that he had gone to the police, or any statement that he had made to the police, nor had the police ever followed the matter up with Mr Bolch. The furthest that matters went was that Mr Chipman produced, it seems, a card from the police relating to damage to his car by fire, which of course had no connection on any basis with the matters which were before the Tribunal; at any rate insofar as anyone ever alleged.
10. But on receipt of that letter alleging the unparticularised threat to which have referred, and it does not appear that a copy of that letter was sent either by the Tribunal or Mr Chipman to Mr Bolch, the Tribunal concluded that it would treat the hearing of the application, that was fixed, as we have indicated, for 28 May 2002, as the hearing of an application by Mr Chipman to debar the Appellant. This decision appears to have been made on the day and in the absence of the Appellant who, as we earlier indicated, did not have any notice of the hearing and consequently did not attend.
11. There is no doubt, and the contrary has not been suggested either by Mr Chipman or in particular by the Tribunal, including the Chairman of the Tribunal, that the fact that Mr Bolch did not have notice of that hearing is not to be ascribed to him. A letter from the Employment Tribunal Service, dated 19 June 2002, a copy of which it seems was sent to the Appellant's MP, whom he had sought to involve, makes it plain that the errors which were accepted in that letter were the responsibility of the Employment Tribunal Service, and not the Appellant, and the writer, the Regional Secretary, of the letter sincerely apologised to Mr Bolch for those errors.
12. The fact is, however, that the hearing went ahead in the absence of Mr Bolch and a conclusion was reached by the Chairman (Mr A B Pollok), in Mr Bolch's absence, that there had been conduct which fell within Rule 15 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001 and an order was made debarring Mr Bolch from further proceeding, in the sense that his Notice of Appearance was struck out.
13. Rule 15 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001, Schedule 1, reads in material part as follows:

15 (1) "Subject to the provisions of these rules, a tribunal may regulate its own procedure.

(2) A tribunal may –

…

(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, unreasonable or vexatious;

…

(3) Before making an order under sub-paragraph (c), (d) or (e) of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."

14. There is no indication in the papers before us, so far as we can see, that there was any notice sent to the party of an intention to make such an order on 28 May; but if any was, it was not received by Mr Bolch in the same way that through the errors, to which we have referred, he received no notice of the hearing in any event; even when it was simply intended to be a substantive hearing of the unfair dismissal complaint. He certainly had no opportunity to show cause orally why the order should not be made, because he was not present in circumstances for which he was not responsible.
15. The Tribunal heard evidence on that occasion. The evidence that it heard was based upon a statement that had apparently been made by the third party who was said to have heard the incident, a Mrs Solomon. So far as Mr Chipman is concerned, there is reference to his letter of 12 April (to which we have referred) and to a statement that he had made. We do not have a copy of that statement. So far as Mrs Mills is concerned, Mr Chipman's partner, she gave evidence orally. There is no specific mention of a statement by her, but there is in the Chairman's notes of evidence, to which we will return, reference made to her oral evidence. In the absence of course of Mr Bolch that evidence must have been taken quite shortly.
16. The Chairman's notes of evidence are themselves short and emerged subsequently in circumstances to which we will refer. We have indicated that it records that Mr Chipman gave evidence in accordance with the 12 April letter and a statement of his and so far as Mrs Mills is concerned, the record of her evidence states that apart from reading a letter dated 11 April (if that is intended to be different from the letter of 12 April, we have again not seen it). She gave oral evidence which is summarised as follows:

"In my mind it was connected with the ET."

She then says in addition:

"Mr Bolch is a big man. Same height as me bigger build.

I was worried that John would lose his temper.

He (Bolch) is still parking outside.

Two days before "that's what you can expect when one dog takes another for a walk".
(said about me in my hearing)."

17. Apart from the reference to the statement of Lorraine Solomon, whose contents are not known to us, that was the record of the hearing on 28 May as far as can be seen. The result was that the Tribunal made the order striking out the Notice of Appearance, as we have indicated.
18. When Mr Bolch learned of the making of that order he immediately complained, by letter dated 30 May 2002, to the Employment Tribunal; in which the points were made that he had not known of the court hearing date. He would, he said, had he known of the date when applying for a review of the earlier decision, have sought a postponement of the May hearing pending the outcome of his review and appeal. But in any event, he would have attended on 28 May. It is subsequent to that complaint that the apology letter was written to the Employment Tribunal Service.
19. The outcome was that the Employment Tribunal agreed to restore the hearing of 28 May, on the date which it seems had already been fixed for the substantive hearing of the appeal on 19 July. However, the Tribunal did not set aside the hearing on 28 May that had occurred in its entirety but simply set aside the order that had been made. The result was as follows:

(1) The same Chairman who had heard the partial evidence, some of which was oral, by the three witnesses on behalf of the Applicant, was now to continue the hearing, but now in the presence of Mr Bolch;

(2) Mr Bolch had not been present when the oral evidence was given on behalf of the witnesses for Mr Chipman. He consequently had not heard that evidence and had no idea of the substance or nature or manner of its giving. No copy of the notes of evidence of that hearing was supplied to him.

20. On 19 July, the parties attended, therefore, for the purpose of an effective continuation of the hearing of 28 May, but with the decision set aside, and also for the substantive hearing of the unfair dismissal claim. The notes of evidence supplied by the Tribunal say this at the bottom of that page which records the evidence that was given on 28 May:

"Resumed Hearing from 28 May."

and there is then a note of the hearing which continued, as suggested, on 19 July, but this time with Mr Bolch present.

21. It appears that Mr Chipman went back into the witness box. The note of evidence says:

"Applicant – sworn."

There is no suggestion that any fresh oral evidence was given by the Applicant. There is certainly no note of any, and he was then, according to the notes, cross-examined by Mr Bolch. It was in the course of that cross-examination that Mr Chipman was apparently unable to produce any evidence that he had in fact reported the matter to the police.

22. There was then a record that a Mr Mould, who was, it seems, Mr Bolch's witness, was called out of turn and the notes of evidence say:

"Statement read."

although we have not seen a copy of that statement, and there is no note of the substance of any oral evidence that Mr Mould gave. We understand Mr Mould to have been a witness for Mr Bolch.

23. Mrs Mills is then recorded as having been sworn. Once again there is no note that she gave any fresh oral evidence in addition to what she had given on the previous occasion. She was simply cross-examined. Similarly so in relation to Lorraine Solomon, there is reference to her statement which, it seems, was provided to Mr Bolch, but no record of any oral evidence that she gave, simply of her cross-examination.
24. We are told by Mr Bolch that he sought to call, in addition to his own evidence, which is recorded and on which he was cross-examined, and, it seems, that of Mr Mould, who was recalled in circumstances unclear to us, his wife to give evidence, and the Chairman refused him permission to call his wife.
25. There must presumably have been some discussion in front of the Chairman, and we have read the Chairman's response to the Appellant's complaints, which he has helpfully provided to us, as to what evidence she would have given, and it appears that she was not present on the alleged occasion. However, we are told that she would have given evidence as to the reasons why it was appropriate and proper for Mr Bolch to have been present in the road on the day, and further evidence as to the background, with regard to the hostility between the two parties with alleged blame to be ascribed, no doubt, to both sides by any objective observer, if her evidence was to be believed. However, she did not give such evidence, because the Tribunal did not permit her to be called.
26. The decision, as we have indicated, by the Tribunal, which was unanimous, is set out in Extended Reasons of 19 July 2002, delivered on 5 August. Reference is made to the chronology which includes a statement in sub-paragraph (x) that:

(x) "By letter dated 10 June the Tribunal informed the Respondent that it had under consideration the possibility of making an Order striking out his Notice of Appearance."

This is a reference, plainly, to a letter which post-dated the hearing on 28 May. It suggests that there had not been such a letter sent to the Appellant before the hearing on 28 May.

27. At paragraph 2 the relevant facts of the incident, as found by the Tribunal, are set out; and the Tribunal decision reads as follows:

2 "The relevant facts of the incident which occurred outside the applicant's home at 9 Apsley Road, Great Yarmouth on 11 April 2002 and concerning which the applicant made complaint were as follows:

At approximately 5.00pm the applicant was walking on the pavement in Apsley Road. At the same time the respondent was also walking on the pavement in Apsley Road in the same direction as the applicant but on the opposite side of the road to him. As the applicant approached his home at No 9 Apsley Road, the respondent shouted to him across the road saying "Are you still walking Mr Chipman?"

The applicant replied "Yes, why?"

The respondent then said "Well, not for long."

The applicant then asked the respondent "Is that a threat?"

The respondent replied "No, a promise."

The respondent then laughed, climbed into his car which was parked by the kerbside and left the scene.

The account of the incident set out above formed part of the evidence given to the Tribunal by the applicant.

3 The incident was observed and heard by the applicant's companion/partner, Mrs Janet Mills and also by a lady by the name of Lorraine Solomon who happened to be visiting Mrs Mills at the time. Both these ladies were present in the front garden of the applicant's home at No 9 Apsley Road at the time when the incident occurred. Both women gave evidence which corroborated in detail the applicant's account of the incident.

4 The Chairman asked Mrs Solomon if she could describe to the Tribunal the tone of voice used by the respondent when he shouted across the road to the applicant. Her reply was to the effect that when she first heard the respondent say "Are you still walking Mr Chipman?" she thought that he was being funny but when the respondent spoke the works [sic] "But not for long". His tone was (to use her word) menacing, and caused her to ask Mrs Mills "who on earth is that?"

28. We interpose to say that it is unclear as to whether that paragraph refers to what occurred on 28 May when Mrs Solomon's statement is recorded as having been read, or when she was cross-examined by Mr Bolch at the occasion on 19 July. Insofar as the Tribunal relies on the description by Mrs Solomon as to tones of voice, it may be that she gave such evidence on both occasions. But on any basis it appears to have been influential upon the Chairman, and it is at the very least unclear as to whether such influential evidence was all given in the presence of Mr Bolch.
29. At paragraph 5 the Tribunal continued:

5 "Although initially seeming reluctant to do so the Respondent gave evidence on his own behalf.

In part the Respondent's evidence was as follows verbatim:

"I couldn't hazard a guess as to whether I was there or not. I could have been.

I didn't say what Mr Chipman says I said.

I cannot honestly say whether I had a conversation then because I have had several conversations with him (Mr Chipman).

I can't explain why the other witnesses would say what they have."

6 So far as the evidence of the Respondent was concerned the Tribunal was at something of a loss to understand how on the one hand he could deny having made the remarks attributed to him by the applicant whereas on the other hand he was unable to say whether or not he had even been in Apsley Road on 11 June or whether or not he had then had a conversation with the applicant."

30. We interpose to say that the evidence given by Mr Bolch, and which would have been supported by his wife had she been called, was that he had cause to be in Apsley Road, quite irrespective of the fact that Mr Chipman lived there, by reference to premises in which he had in some way an interest.
31. The Tribunal continues:

"In sharp contrast we found the evidence of the applicant and his corroborating witnesses, Mrs Mills and Mrs Solomon, to be wholly credible. We were particularly struck with the evidence of Mrs Solomon who appeared to us to be an impartial and honest witness and one who had no previous knowledge of the respondent.

7 In summary, we are satisfied beyond a reasonable doubt that the events described by the applicant as having taken place, did in fact do so, and that he had indeed been threatened with physical violence by the respondent."

32. The conclusion is at paragraph 8. It is in these terms:

8 "In the view of the Tribunal the respondent's behaviour was unreasonable to say the least. The Employment Tribunal exists, at least in part, to resolve the differences between employer and employee. If an employer such as the respondent seeks to operate outside the Tribunal and to take matters into his own hands, it is appropriate that he should forfeit the privilege of conducting a defence within the Tribunal. It therefore seemed to us that in the circumstances we should exercise the power conferred on us by paragraph 15 (2) (d) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001 to strike out the respondent's Notice of Appearance and to debar him from taking further part in the proceedings. This we duly do."

33. The result was therefore that the Tribunal then proceeded to hear the unfair dismissal claim, having debarred Mr Bolch, who was sitting at the back of the court with his witnesses, from taking any part whatever in the proceedings.
34. The response by the Chairman to the complaints by Mr Bolch are in a statement which, as we have indicated, has been helpfully produced to us. He confirmed having sent a letter to the Appellant, once he heard that the Appellant was complaining that he had not received notice of the Tribunal hearing which took place on 28 May; and he recited the contents of the letter of 11 June as follows:

"Copies of the written statements of evidence submitted by the applicant and his two supporting witness statements at the hearing held on 28 May last shall be sent to the Respondent with this letter. At the hearing to be held on 19 July 2002 if the respondent wishes to do so he may cross examine the applicant and his two supporting witnesses on the evidence already offered by them to the Tribunal. If this course is followed the respondent will not have suffered any disadvantage resulting from his not having been present at the hearing on 28 May last."

Copies of the statements and another document [unidentified] were sent to the respondent Mr Bolch by fax on 12th June.

At the hearing the respondent Mr Bolch was given the opportunity of cross examining the applicant Mr Chipman and his two witnesses and indeed did so."

35. He then deals with the allegations as to the manner in which he is said to have operated the hearings, with regard to which we have not been addressed by Miss Genn on the Applicant's behalf and we make no findings.
36. To complete the picture, the Tribunal, as we have indicated, continued immediately with the hearing of 19 July. In the light of the enforced non-participation by Mr Bolch, it was not surprising that the Tribunal concluded that the Applicant had been unfairly dismissed. In paragraph 6 of the Extended Reasons the Tribunal concludes as follows:

6 "The Tribunal then attempted to ascertain the reason for the respondent's dismissal of the applicant. This attempt on the part of the Tribunal was unsuccessful because the applicant himself was unable to tell us the reason for which he had been dismissed by the respondent. Furthermore the Notice of Appearance which had originally been entered by the respondent had by an earlier Order of the Tribunal [that of course is the Order with which they had immediately just dealt] been struck out. There was therefore no evidence before the Tribunal as to the reason for the applicant's dismissal. That being so it was our view that the respondent must be deemed to have offered no reason for the dismissal of the applicant and, that being the case, must be regarded as having failed to comply with the obligation laid upon an employers' shoulders by section 98 of the Employment Rights Act 1996…to show a 'fair' reason for the dismissal of an employee. The respondent's dismissal of the applicant was therefore necessarily unfair."

37. The Tribunal then went on, as it indicated, to consider what sums should be paid to the Applicant by way of compensation. A bundle of documents had been produced by both parties and put before the Tribunal.
38. Mr Bolch asserts that had the Tribunal considered the bundle put forward by him, and he goes further, even had the Tribunal fully considered even the bundle of documents put forward by Mr Chipman himself, it would have been apparent that the orally asserted claim that the Tribunal was hearing from Mr Chipman was contradicted, and could not be supported in at least three respects. First, Mr Chipman asserted an entitlement to underpayment of wages by reference to statutory provisions under the National Minimum Wage Act 1998. Second, he was asserting that he had not been paid monies by way of holiday pay. Third, he was asserting that there were tools which had not been returned to him by the Appellant.
39. An Order was made by way of compensation by the Tribunal in favour of Mr Chipman for loss of wages for a four week period, for twelve week's holiday pay and, in respect of expenses incurred in pursuing his application and other items, those said to include the cost of replacement of the tools.
40. Mr Bolch submits that had he been heard he would have been able to give evidence that the tools had been returned to him. So far as the documents in the bundle are concerned, he would have shown, by reference to the documents themselves, as he submits, that there was no payment owed in respect of wages, all having been paid and indeed evidenced by a P45 and a cheque. So far as the underpayment of wages is concerned, he submits that, by reference to a letter from the Inland Revenue, it would have been indicated that there was none such due.
41. In his comments to us, the Chairman refers to the letter from the Inland Revenue, and asserts a view, which appears to be a view that he has now, rather than one formed at the time, that the Inland Revenue letter does not appear to be capable of supporting the sweeping construction which Mr Bolch sought to place upon it (I assume he means so sought in the Notice of Appeal because of course Mr Bolch was given no opportunity to seek to place any construction upon it before him, in the circumstances to which we have referred).
42. We have not needed to look at the substance of those documents on the appeal but simply to know of their existence, and we form no view one way or the other as to whether what Mr Bolch says is right, namely that they would have established that on any basis the claim for compensation was inappropriate or exaggerated; but we simply point out one of the alleged consequences of the fact that not only was Mr Bolch not permitted to defend on liability but not permitted to defend or even probe the case for the Applicant on the case for quantum either.
43. We turn then to the appeal as put forward by Miss Genn ably in her Skeleton Argument and briefly supplemented by her orally before us today:

(1) The Decision on 19 July which, as we have indicated, appears to have been treated by the Tribunal as a continuation of the hearing of 28 May.

44. We are entirely satisfied that the course taken by the Tribunal was quite inappropriate. Once it was apparent, as it was apparent, that the fact that the Appellant did not attend on 28 May, such that the case proceeded in his absence, was not his fault, and indeed was it seems the fault of the Employment Tribunal Service, then that hearing should have been treated as a nullity and the case should have been restarted.
45. It is quite apparent to us that it in no way removed any prejudice to Mr Bolch that he was able to cross-examine witnesses and give evidence himself in what was effectively an adjourned hearing, part of which he had not been present at and had no informed knowledge about. Even had he been supplied with the abbreviated notes of evidence, with which we have now been supplied, he would hardly have been any better off. But certainly without those notes of evidence he had no idea what the oral evidence was or the tenor in which it had been given. His cross-examination of evidence he had not heard must have been ineffective.
46. We are satisfied that of course the Tribunal must have borne in mind embarrassment and inconvenience so far as Mr Chipman is concerned and it may well be that Mr Chipman might have been entitled to some recompense from the Employment Tribunal Service itself, if there is such power to reimburse, because it was in no way Mr Chipman's fault that Mr Bolch had not been present. But the fact is that that hearing should have been regarded as aborted and restarted on any view. In our judgment, on that basis alone, the decision on 19 July to strike out Mr Bolch's Notice of Appearance, after an ex parte hearing on 28 May, continued inter partes effectively on 19 July, cannot stand.

(2) The next question that arises is as to the substance of the question as to an order to debar Mr Bolch from defending Mr Chipman's claim for unfair dismissal.

47. Two possibilities arise. First, that there should now be a rehearing by the Employment Tribunal, no doubt a different one, of the question as to whether Mr Bolch should be debarred from defending the case for unfair dismissal.
48. Against the possibility of that order being made it is plain that this Tribunal must take the opportunity to reach a conclusion as to what occurred on the last occasion, simply for the purpose of giving directions and assistance on the law to a further Tribunal to hear the same matter again.
49. The second possibility is that there should be no remission of this question but that this Tribunal should reach its own decision on the outcome of the debarring application. This Tribunal is only permitted to take that course if it is satisfied that there would be no other reasonable outcome of a remitted hearing than a conclusion in favour of Mr Bolch.
50. It is plain that if there were to be a remitted hearing of this matter it would be most unfortunate from all sides by virtue of the passage of time that has occurred. But if there must be a remission then there must be a remission, and we will duly consider that.
51. We turn then to the substantive questions relating to the hearing, albeit one which we have found should be set aside for reasons which we have given, both by way of substantive conclusion as to what occurred and also by way of guidance, either if there is to be a remission or for any future similar application.
52. We have been helpfully supplied with a number of authorities by Miss Genn, to which we will refer. The first question which arises out of Rule 15 (2) (d), as is quite clear, is whether the proceedings have been conducted by or on behalf of an Applicant or, as the case may be, Respondent, has been scandalous, unreasonable or vexatious. 'Unreasonable' is a relatively recent word by way of substitution for the word 'frivolous' in the old rule, and it is apparent that that, to some extent, lowers the hurdle. A conclusion can be reached that proceedings had been conducted unreasonably without a conclusion that they had been conducted scandalously or vexatiously, or indeed frivolously.
53. It does, in a way, appear to us to be strange that, if the Tribunal had considered this threat took place, as they seem to have done, any conclusion they reached was only because it was unreasonable; although that is the only conclusion it did reach, albeit that its words are "unreasonable to say the least". If there were a threat to cause violence with the intention of interfering with the proceedings, and frightening off an Applicant from taking the matter further in an Employment Tribunal, one might have expected the conclusion to be that such conduct was scandalous or vexatious, but the Tribunal did not so find. That may itself perhaps throw some light upon the uncertainty as to whether an order of this kind was in any event appropriate on the evidence before the Tribunal.
54. We must emphasise, as a matter of initial reminder, that the power under Order 15 (2) (d) only arises if either the Tribunal has sent a notice to the Applicant or he has been given an opportunity to show cause orally by virtue of Rule 15 (3). Quite apart from the order we have made setting aside, because of its unsatisfactory nature, the two-part hearing that in practice occurred in this case, there would have been, as we have already indicated, a very substantial question as to whether it could be said that there was an opportunity given for Mr Bolch to show cause orally simply by virtue of his having been allowed in at part 2, not having heard part 1, of the hearing, or in any event whether it could be said that the procedure on 28 May should ever have been launched in the absence of the Applicant when no prior notice had, it seems on any basis, been sent to him, even one which did not in the event arrive, before that hearing commenced in his absence on 28 May.
55. However, quite apart from procedural matters, we turn to the questions that would require, as a matter of law as it appears to us, to be decided by a Tribunal, once faced properly with a question under Rule 15 (2) (d).

(1) There must be a conclusion by the Tribunal not simply that a party has behaved unreasonably but that the proceedings have been conducted by or on his behalf unreasonably.

As is clear from the decision, which we have quoted in extenso, there was no such finding by this Tribunal. The Tribunal commented, and we repeat the comment:

8 "If an employer such as the respondent seeks to operate outside the Tribunal and to take matters into his own hands, it is appropriate that he should forfeit the privilege of conducting a defence within the Tribunal."

Quite apart from the fact that the words "operating outside the Tribunal" almost indicate that they were concluding that he was not in fact conducting the proceedings of the Tribunal, there is, on any basis, that apart, no express finding within the terms of 15 (2) (d). We are by no means saying that there can be no finding that proceedings have been conducted in the relevantly objectionable ways, simply because the conduct that occurred is proven to have taken place outside the curtilage of the Tribunal. It is not necessary that such objectionable conduct should either amount to the sending of legal documents, or the receipt of legal documents, or their non-receipt, or behaviour in the waiting room, or behaviour in the court room.

There can no doubt be a finding in relation to conduct outside the court room and outside the ambit of legal correspondence which could be found to be a method of conducting the proceedings. For example, it may well be, on appropriate facts, that a Tribunal might find that if there were a threat that unless proceedings were withdrawn some course or other could be taken, that that would amount to a scandalous method of conducting those proceedings. But as we have indicated, there was no such finding here.

Now we have seen the notes of evidence of what Mrs Mills is said to have said on 28 May in the absence of Mr Bolch, we note, and this is the highest that the case can be substantiated, on the notes of evidence at any rate, and there is no reference to it, as we have indicated, in the Tribunal's findings, that she said "In my mind it was connected with the ET". But the case is put no higher than that. and, as we have indicated, there was no reference to that evidence in the Tribunal's decision nor any conclusion in that regard. If there is such to be a finding in respect of Rule 15 (2) (d), in this or any case, there must be a finding with appropriate reasons, that the conduct in question was conduct of the proceedings and, in the circumstances and context, amounted to scandalous, unreasonable or vexatious such conduct.

This proposition is supported by the recent decision of the Court of Appeal, to which our attention has been drawn by Miss Genn, in Bennett v Southwark London Borough Council [2002] ICR 881, where the conclusion was that conduct in the Tribunal by an advocate, by way of aberrant and offensive behaviour, was not, in those circumstances, relevant conduct within Order 15 (2) (d).

(2) Assuming there be a finding that the proceedings have been conducted scandalously, unreasonably or vexatiously, that is not the final question so far as leading on to an order that the Notice of Appearance must be struck out.

The helpful and influential decision of the Employment Appeal Tribunal, per Lindsay P, in De Keyser Ltd v Wilson [2001] IRLR 324 is directly in point. De Keyser makes it plain that there can be circumstances in which a finding can lead straight to a debarring order. Such an example, and we note paragraph 25 of Lindsay P's judgment, is "wilful, deliberate or contumelious disobedience" of the Order of a court.

But in ordinary circumstances it is plain from Lindsay P's judgment that what is required before there can be a strike out of a Notice of Appearance or indeed an Originating Application is a conclusion as to whether a fair trial is or is not still possible.

That decision is not only a decision binding on Employment Tribunals and persuasive before this Tribunal, but it follows well-established authority – in the High Court in the persuasive decision of Logicrose Ltd v Southend United Football Club Ltd by Millett J (as he then was), reported in The Times 5 March 1998, and in the Court of Appeal in Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167; both of which authorities were recited by Lindsay P in the course of his judgment in De Keyser.

An enquiry must be held by the tribunal, having made its finding as to the conduct in question, absent the exceptional case as to whether a fair trial is still possible. In Logicrose it was held that such a fair trial was still possible. In Arrow Nominees it was held that it was not.

The reason for the need for that question to be asked, save in the exceptional circumstance to which we and Lindsay P have referred, is that a striking out order is not (or at any rate not simply) regarded as a punishment. We quote from Millett J's judgment as reported in The Times:

"The deliberate and successful suppression of a material document was a serious abuse of the process of the court and might well merit the exclusion of the offender from all further participation in the trial. The reason was that it made the fair trial of the action impossible to achieve and judgment in favour of the offender unsafe.

But if the threat of such exclusion produced the missing document then the object of Order 24, rule 16 was achieved. In his Lordship's judgment an action ought to be dismissed or the defence struck out only in the most exceptional circumstances once the missing document had been produced and then only, if, despite its production, there remained a real risk that justice could not be done.

That might be the case if it was no longer possible to remedy the consequences of the document's suppression despite its production. It would not be right to drive a litigant from the judgment seat, without a determination of the issues, as a punishment for his conduct, however deplorable, unless there was a real risk that the conduct would render further proceedings unsatisfactory."

One has only to set those words of Millett J against the words of the Tribunal in paragraph 8 in this case "…it is appropriate that he should forfeit the privilege of conducting a defence within the Tribunal" to see that in our judgment the Tribunal in this case did not approach the question correctly in law.

Employment tribunals must have the power to manage cases, and to make orders that unless their orders be complied with applications will be debarred or dismissed, and if there are breaches of those orders then of course, pursuant to what Lindsay P himself made clear in De Keyser, there will have been, absent a proper excuse, wilful disobedience of a court order, which can lead to a strike out.

There will plainly be circumstances, perhaps such as we indicated earlier by way of illustration, in which conduct of proceedings, for example by way of a threat, even if it results in some kind of promise of good behaviour, or something of that kind, by a respondent, can still have such lingering effect that the Tribunal is of the view that there can no longer be a fair trial. That can certainly be the case in the example given by Millett J where documents have been fabricated, if, for example, no tribunal hearing the case can be satisfied that there are no further documents to be produced or that the present documents may not also have been fabricated, because confidence has been entirely lost in the good faith and honesty of one party or the other. But there must be, and certainly should have been in this case, in our judgment, a conclusion as to whether or not a fair trial can and could be held.

(3) Once there has been a conclusion, if there has been, that the proceedings have been conducted in breach of Rule 15 (2) (d), and that a fair trial is not possible, there still remains the question as to what remedy the tribunal considers appropriate, which is proportionate to its conclusion. It is also possible, of course, that there can be a remedy, even in the absence of a conclusion that a fair trial is no longer possible, which amounts to some kind of punishment, but which, if it does not drive the defendant from the judgment seat (in the words of Millett J) may still be an appropriate penalty to impose, provided that it does not lead to a debarring from the case in its entirety, but some lesser penalty.

(4) But even if the question of a fair trial is found against such a party, the question still arises as to consequence. That is clear because the remedy, under Rule 15 (2) (d), is or can be the striking out of the Notice of Appearance. The effect of a Notice of Appearance being struck out is of course that there is no Notice of Appearance served. The consequence of there being no Notice of Appearance by a Respondent is set out in Rule 3 (3), and it reads as follows:

3 (3) "A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except –

(a) to apply under rule 17 for an extension of the time appointed by this rule for entering an appearance"

Another option would be to apply for a review of any decision under Rule 13, if the party had not received notice (sub-paragraph 3 (3) (c)).

But sub-paragraph 3 (3) (b) instantly entitles a respondent who has not entered an application:

"…to make an application under Rule 4 (1) for a direction requiring the applicant to provide further particulars of the grounds on which he relies and of any facts and contentions relevant thereto."

It is thus apparent that even a party who has not put in a Notice of Appearance, never mind one who has put one in and has it on the court file but is then debarred from further participation, is entitled to probe the case for the applicant.

We are satisfied that any tribunal making an order, in the circumstances in which this Tribunal made its order, must ask the question as to what the appropriate consequence is. As a result of Rule 3 (3) a respondent who has not entered an appearance is not entitled to take any part in the proceedings. But that does not prevent the tribunal, pursuant to its case management powers under Rule 4 or its powers to regulate its own procedure under Rule 15, to make appropriate and proportionate orders.

An option in such a case as this would have been for the Tribunal to debar the Respondent from taking any further part in liability but not necessarily to debar the Respondent but rather to permit him to take part and at the very least probe the case for the Applicant on the question of compensation.

This Tribunal did not ask itself any such questions.

56. Those four steps must be taken in an ordinary case, and were not taken in this case. If the matter is to be remitted to a further tribunal then another tribunal would first have to consider whether there should be a further hearing of this question as to whether the Respondent should be debarred. It appears to us far from certain at this stage, so many months on from the original event, that a tribunal would conclude that such a course was in any event appropriate and/or it may be that Mr Chipman himself might not wish it, but would rather get on with the substantive case. If, however, there were to be a conclusion by a tribunal in this or any case that there be such an application now heard, then of course there would be oral evidence and cross-examination, and the four steps to which we have referred would be followed by a Tribunal.
57. But Miss Genn has addressed us on the basis that this is not a case in which we ought to remit this case, even given what we have set out at the outset of this judgment, namely the exceptional course which that would involve. She invites us to conclude that no reasonable tribunal, if the matter were now reheard, would reach the conclusion that Mr Bolch had conducted these proceedings unreasonably so that his Notice of Appearance should be struck out. It is to that point to which we finally turn.
58. The first issue is whether a tribunal would conclude that the proceedings have been unreasonably conducted. We have seen the evidence for Mr Chipman at its highest. Plainly if the matter were to be reheard, and Mr Bolch were to be given a fair opportunity to cross-examine, and to probe the case, and perhaps to call his wife as witness, if indeed she has relevant evidence to give, it may well be that Mr Chipman's case would not be capable of ending up being put as high as it is at the moment. But accepting for the moment that the case is and will remain as found by the Tribunal, and the evidence for the Applicant be as it was before the Tribunal, the highest that can be said is that Mrs Mills herself connected the matter in her own mind with the Employment Tribunal. There is, on that basis, no sufficient evidence, it appears to us, to reach a conclusion that this was behaviour which could amount to conduct of the proceedings by Mr Bolch.
59. Even assuming we were wrong about that, and that we would have to take into account the possibility that the evidence for the Applicant might improve on a further hearing being more formally held, or that a Tribunal might reach expressly the conclusion which Mrs Mills appears to have reached in her own mind, the next hurdle of 'fair trial' would then have to be surmounted. It appears to us that this is an insurmountable hurdle for this Applicant.
60. There is no suggestion here that as a result of the incident on 11 April, whatever it amounted to, Mr Chipman in fact was so frightened that he took no further steps in the action. Far from it, he attended on 19 July, as we understand it, with his witnesses, in a position to deal with the substantive case. And once the further hearing of the 28 May matter had taken place, that is exactly what occurred.
61. It appears to us that it would be impossible to conclude that a fair trial of the unfair dismissal application was not possible or indeed was in any way inhibited by what occurred. Of course the test would be, looking at the threat, as found, did that mean that a fair trial was not possible? But the best answer that could possibly be given was to look at what did in fact occur and it is apparent that a fair trial was possible and was so prepared, and was in a position to go ahead, even on an inter partes basis, and in fact went ahead ex parte.
62. We are satisfied that no tribunal could reach the conclusion that a fair trial of this application, notwithstanding any finding it might make as to the behaviour of Mr Bolch, could not have occurred.
63. We do not, in any way, seek to approve or condone any conduct by Mr Bolch which occurred. Plainly if there were threats which unsettled or made unhappy Mr Chipman that would be reprehensible. There must have been something which occurred, otherwise it is highly unlikely that Mr Chipman would have sent the complaint letter to the Tribunal of 12 April and been willing with his witnesses, including an apparently independent witness, to proceed to the hearing on 28 May.
64. But we are equally satisfied that, whatever occurred on that occasion, reprehensible though it may have been, would not have interfered with, and would not have prevented, a fair trial. We conclude that in those circumstances it is not appropriate yet further to delay this matter, to prevent it coming on for substantive hearing before the Employment Tribunal, by yet more interlocutory procedures.
65. In those circumstances we set aside the conclusions and decisions by the Employment Tribunal and direct that as soon as possible there be a hearing of Mr Chipman's claim for unfair dismissal by Mr Bolch, at the Employment Tribunal; but to be heard by a differently-constituted Tribunal.