United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C J BYRNELL THE APPELLANT IN PERSON
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE BIRTLES:

1. This is an appeal from a decision of a Chairman, sitting alone, at Southampton on 14 May 2002. The Chairman was Mr I.A. Edwards. The hearing on that day was to be a pre-hearing review and the Notice for that pre-hearing review was sent out on 24 April 2002, and it is in standard form.
2. It is not clear to us from that form whether the application for the pre-hearing review was an application made by the Respondent, or whether it was a pre-hearing review ordered on the Tribunal's own motion. Mr Byrnell, who has appeared today, thinks that it was on the application of the Respondent, but for the purposes of today that does not matter.
3. At the hearing on 14 May 2002, only Mr Byrnell attended. What had happened was this. The Respondent's Manager, a Mr Clemson, was unavailable for the hearing on 14 May, and the Respondent had written to the Employment Tribunal on 26 April 2002 seeking an adjournment of the hearing of 14 May. That application had been granted by an Employment Tribunal Chairman and, although the Respondent was notified of the Chairman's decision, Mr Byrnell was not, and that was the reason that he attended. Paragraph 1 of the Summary Reasons of the Chairman make it clear that no action had been taken by the administrative staff at the Southampton Employment Tribunals to rearrange the hearing.
4. Mr Edwards took the view that he could proceed with the pre-hearing review in the absence of the Respondent despite the fact that a Chairman had vacated the pre-hearing review. We have no doubt that he decided to take that course of action because he thought that, having regard to the Overriding Objective set out in Rule 10 of the 2001 Rules, that this would be a useful way of saving time, given that Mr Byrnell was present. Those are the material facts.
5. Having heard Mr Byrnell, the Chairman made an Order that Mr Byrnell pay a deposit of £250 as a condition of being permitted to continue to take part in the proceedings. It is not necessary for us this morning to discuss the nature of Mr Byrnell's claim against the Respondent.
6. We turn to the law. The provisions relating to pre-hearing review are set out in Rule 7 of the Employment Tribunal Constitution and Rules of Procedure Regulations 2001, and I propose to read the first four paragraphs:

"7(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of –

(a) the contents of the originating application and notice of appearance;

(b) any representations in writing; and

(c) any oral argument advanced by or on behalf of a party.

(2) If a party applies for a pre-hearing review and the tribunal determines that there shall be no review, the Secretary shall send notice of the determination to that party. [We emphasise that that was not this case].

(3) A pre-hearing review shall not take place unless the Secretary has sent notice to the parties giving them an opportunity to submit representations in writing and to advance oral argument at the review if they so wish. [We emphasise the word shall].

(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal shall make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings in relating to that matter."

7. It is therefore clear, under Rule 7(3), that a pre-hearing review shall not take place unless the Secretary has sent notice to the parties, giving them an opportunity to submit representations in writing and to advance oral argument at the review, if they so wish. It is also clear, from the fact that the Respondent had applied for an adjournment of the hearing of 14 May and had been granted it because it wished Mr Clemson, its Manager, to attend. It is not clear whether the Respondent was to be legally represented but, in any event, it intended that Mr Clemson should be available, either to give instructions to a legal representative or to make representations to the Tribunal.
8. The second point we note is that, as the Chairman specifically finds, no action was taken by the administrative staff to re-arrange the hearing. It follows that the requirements of Rule 7(3) have not been complied with. No Notice had been sent out. First, the hearing on 14 May had been adjourned by a Chairman and Mr Edwards had no power therefore to re-constitute it in the absence of the Respondent, or at all. Second, no action had been taken and no Notice had been sent out by the Secretary to the parties informing them of the new hearing date.
9. For these reasons we think that the Chairman fell into error in continuing with the pre-hearing review and making the Order that he did, as he had no jurisdiction to conduct a review on 14 May 2002. It follows that he had no power to make an Order that Mr Byrnell pay a deposit of £250, as a condition of being permitted to continue to take part in these proceedings. For these reasons, the appeal will be allowed, and the Order requiring Mr Byrnell to pay the deposit of £250 will be quashed. There is no issue here to remit to the Employment Tribunal.
10. We have explained to Mr Byrnell that our decision does not prevent the Respondent or, indeed the Tribunal of its own motion, from requesting a further pre-hearing review. Providing the proper procedure is followed, there can be a pre-hearing review at which the issue of whether or not Mr Byrnell has any reasonable prospects of success in his claim can be argued, but that is not a matter for us today.
11. In the circumstances, therefore, we allow the appeal. If there is to be a further pre-hearing review, we request that that take place in front of a different Chairman other than Mr Edwards. Mr Edwards has quite clearly formed a view about Mr Byrnell's prospects of success and we think it would be better if any subsequent pre-hearing review was heard by a different Chairman.