At the Tribunal | |
On 14 September 2005 | |
Before
HIS HONOUR JUDGE ANSELL
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MISS JUDE SHEPHERD (Of Counsel) |
For the Respondent | MS ALISON WETHERFIELD Representative Instructed by: Messrs McDermott Will & Emery LLP Solicitors 7 Bishopsgate London EC2N 3AR |
SUMMARY
Service of notice of pre-hearing review on representatives who had made application to the Tribunal even where they sought to reserve their position in a letter to the employer's solicitors held to be valid.
HIS HONOUR JUDGE ANSELL
"AMENDED ORDER 19TH January 2005-09-16
I acknowledge receipt of the Respondent's representative's letter dated 11th January 2005. (Copy enclosed for the attention of the Claimant).
A Chairman of the Tribunals, Ms J Laider has made the following Orders on his or her own initiative, and under Rule 12(2) the party affected by the Order may apply to have it varied or revoked. Such an application must be made before the time at which, or the expiry of the period within which, the Order is to be complied with. The application must be made in writing to this office and include reasons for the application. A party who is legally represented is required by Rule 11(4) to provide all other parties with the information in writing set out in that rule.
UNLESS ORDER: the Chairman has Ordered, under Rule 13(2) that unless the Order or Orders set out above are complied with, the claim shall be struck out on the date of non compliance without further consideration of the proceedings or the need to give notice under Rule 19 or hold a pre-hearing review of Hearing.
CONSEQUENCES OF NON COMPLIANCE
Failure to comply with Orders made under the Rules and set out in this letter may result in a Chairman or Tribunal making an Order in respect of costs of preparation under Rules 38-46; or, subject to notice under Rule 19, at a pre-hearing review or at a Hearing, making an Order to strike out the whole or part of the claim.
(a) Failure to comply with an Order for inspection, or discovery may result on summary conviction in a fine of up to £1,000 being imposed upon a party on default under Section 7(4) of the Employment Tribunal Act 1996.
SCHEDULE
Comply with the order at the Case Management Discussion on 8th December 2004 namely:
To provide the Tribunal and the Respondents with Further and Better Particulars of the Further and Better Particulars served 8 July 2004 setting out in relation to each and every allegation whether or not it is her case that the incident relied upon was witnessed and if so by whom.
Please comply with order on or before 28th January 2005."
"Please find enclosed two applications to the Employment Tribunal. The details of the applications and reasons why they are sought are contained therein. Notification of any objection to any application must be sent to the Employment Tribunal within 7 days. Any objection to the application must be copied to both the Employment Tribunal and our client.
Please note that we have not yet received formal instructions from the Claimant to act in this matter. Therefore, would you please continue to correspond with the Claimant until this time."
That letter enclosed a copy of the letter sent to the Regional Secretary for the Tribunals which having set out the background to the case and other matters including instructions from the Appellant as to why she had not complied with the order concluded by applying to the Tribunal for either a revocation of the order alternatively an application to vary the directions including an application to extend time for compliance to the 28 February. Both applications concluded with these words:
"We confirm that we have complied with Rule 11 by fax to the Respondent today."
On 31 January the Respondent's solicitors wrote to the Tribunal informing them about the cover letter from Employment Dispute Consultants in which they indicated they were not formally instructed and requesting that the Tribunal refused the application being made to set aside and/or vary the order and to strike out the Appellant's claim as the date of non-compliance past.
"We have received your letter of 28th January 2005. It is not clear whether you are now instructed by the Claimant. Indeed Mc Dermott Will & Emery in their letter to us of 31st January 2005 state that when their copy of your letter of 28th January 2005 you indicated to them that you were not formally instructed
Please confirm the position and in the meantime we will continue to communicate with the Claimant direct."
On the same day, the Tribunal wrote to the Appellant and the Respondent's solicitors informing them that the Chairman had indicated that a pre hearing review date should be fixed and concluding with these words:
"A notice of hearing will be sent in due course."
A notice of hearing for 14 April was sent out on 24 February to Employment Dispute Consultants and the Respondent's solicitors and contained the following:
"1. A chairman has directed that a pre-hearing review is to be held. The specific preliminary issue to be considered at the hearing is as follows: Whether or not the originating application should be struck out for non compliance with orders of 8 December 2004 & 21 January 2005."
"We refer to the Notice of Hearing dated 24th February 2005 sent to us.
Please note that we are not instructed by the Claimant in this matter. All correspondence should go directly to the Claimant."
The Claimant was not informed directly by the Tribunal of the hearing date until a letter of 11 April sent to her which enclosed a copy of the original hearing notice. It is agreed that that letter was received by the Appellant on 12 April and she responded on the 13th:
"Thank you for you r letter dated 11th April 2005 that I received yesterday.
Please note that Employment Dispute Consultants have not been representing me and therefore any correspondence should be sent directly to me. Unfortunately, I did not receive the letter from the Employment Tribunal of the Notice of Hearing dated 24 February. I also have not received a copy of the Notice of Hearing with the letter that I received yesterday, although it states that a copy is enclosed.
I will be unable to attend the Pre-Hearing Review for this Thursday 14 April, as it is too short notice."
Notice of Hearing
The relevant provisions of the Notice are contained in the Employment Tribunals (Constitution and Rules) Regulations 2004 Schedule 1. Regulation 14(4) provides that:
"(4) Unless the parties agree to shorter notice, the Secretary shall send notice of any hearing (other than a case management discussion) to every party not less than 14 days before the date fixed for the hearing and shall inform them that they have the opportunity to submit written representations and to advance oral argument. The Secretary shall give the parties reasonable notice before a case management discussion is held.
Regulation 61(4) provides that:
"A notice or document sent or given to the authorised representative of a party should be taken to have been sent or given to that party."
"17 The Tribunal accepts the Respondent's submission that the Claimant was put on actual notice of this hearing and has been given the opportunity to make representations. The Tribunal also takes notes the where Notice of Hearing was sent out to a representative: that is covered by Rule 61(4) of the Employment Tribunal Rules 2004, namely that the Claimant is deemed to have notice of this hearing."
"30. In my judgment there was no error of law in the decision of the review tribunal regarding non-receipt of notice. On that point I agree with the submissions made by Miss Maclaren on behalf of the council. It is clear, reading the extended reasons of the review tribunal, that they made findings of fact on that point without any error of law. The applicant accepted in her evidence to them that she had instructed Balogun Kirvan to act on her behalf throughout. They had instructed counsel to appear in the tribunal on her behalf at an earlier hearing; they had corresponded with the tribunal as her solicitors; and the tribunal had corresponded with them and sent notices and documents to them. The evidence adduced on behalf of the applicant did not establish that either the applicant or Balogun Kirvan had even given any notice to the tribunal under regulation 20(4), indicating that the tribunal should now send notices and documents to her personally rather than to the firm of solicitors who had started to act for her."
Miss Shepherd sought to distinguish the manner in which Balogun Kirvan had acted in the Kyamanywa case, to the situation in this case where the Employment Dispute Consultants, she contended had made it clear at all times that they were not authorised representatives.
"(4) When a party is legally represented in relation to the application (except where the application is for a witness order described in rule 10(2)(c) only), that party or the representative must, at the same time as the application is sent to the Employment Tribunal Office, provide all other parties with the following information in writing –
(a) details of the application and the reasons why it is sought;(b) notification that any objection to the application must be sent to the Employment Tribunal Office within 7 days of receiving the application, or before the date of the hearing (whichever date is the earlier);(c) that any objection to the application must be copied to both the Employment Tribunal Office and all other parties;and the party or his representative must confirm in writing to the Employment Tribunal Office that this rule has been complied with."
She argued that Rule 11(4) imposed an obligation on a party who has legally represented to provide certain information to other parties in connection with an application and she reminded me that in the letter of 28 January the consultants had expressly referred to their compliance with Rule 11. She also reminded me that the time the Tribunal sent out their Notice of Hearing on 24 February they had still not received clarification from the consultants as to their exact position. Such information had been requested on 4 February. She argued therefore that the Tribunal were entitled to assume that at the time they made their application on 28 January they were authorised representatives on behalf of the Appellant and had done nothing prior to the 24 February when the Notice of Hearing was sent out to alter that position in relation to the Tribunal. She argued that whatever reservation may have been expressed in the letter of 28 January to the Respondents' solicitors it was not sufficient to displace the inference that was to be drawn from the application that they were making it as authorised representatives on behalf of the Appellant.
Was there a valid Unless Order?
The Application to revoke or vary
"The Claimant has clearly failed to comply with the order of the Tribunal, has failed to provide any reasons for her failure to do so and has not made any attempt to present any case of the Tribunal today."
"14 The Respondent, by its solicitor Ms Weatherfield, made detailed submissions, answering the case which was put forward in EDC's letter of 28 January 2005. One argument put forward by EDC is that the Claimant was willing to disclose names, subject to a pre-condition that the Respondent was not to impugn the credibility of the witnesses and in exchange for that concession the Claimant would disclose the names. Clearly that is not an order that the Tribunal could make. Such an order would hamper the Respondent's ability to cross examine its witnesses and would be contrary to the interests of justice.
15 Further, the Respondent contends that it would not be onerous for the Claimant to require her to disclose whether there were witnesses to the events which she had described. As the Respondent rightly says, only she knows whether there were any witnesses and there can be no problem for any witness in having their name put to a statement. Clearly each witness would be protected by the victimisation provisions of the relevant discrimination legislation were the Claimant's concerns to be realised.
16 The Tribunal took account of the Respondent's submission relating to the overriding objective which is to secure the interests of justice for both parties. The Tribunal notes the chronology and the delays that have taken place in this case. There is no excuse offered by the Claimant for any further delay in providing these particulars. Her letter of 13 April 2005 gives no account of why she could not have complied earlier, nor does she give and explanation as to why she has not appeared today.
17 The Tribunal accepts the Respondent's submission that the Claimant was put on actual notice of this hearing and has been given the opportunity to make representations. The Tribunal also takes notes that where Notice of Hearing was sent out to a representative: that is covered by Rule 61(4) of the Employment Tribunal Rules 2004, namely that the Claimant is deemed to have notice of this hearing."
She argued that although those paragraphs were headed "Respondent's submissions" they in fact also dealt with a number of the matters which were put forward in the Consultants' letter of 28 January and came to conclusions about them. For example in paragraph 14 they dealt with the suggestion put forward by the Consultants that the Appellant was willing to disclose names subject to a pre condition that the Respondents were not to impugn in the credibility of those witnesses and concluded that this was not an Order that a Tribunal could make. Similarly in paragraph 15 the Tribunal agreed with the Respondent's submissions that it would not be onerous for the Appellant to require her to disclose whether there were witnesses to the events. Those 2 findings dealt with the 2 major submissions made by the Consultants under the heading "Revocation of Order" in their letter.
Strike-Out
"Conclusions
18 The Claimant has failed to give any reasonable explanation for not attending the hearing listed for today. A chronology of events shows that the Claimant had had ample opportunity to provide the information to be set out in the further and better particulars of the further and better particulars.
19 The Respondent has hitherto complied with all aspects of Tribunal procedure, is unable to prepare its case nor to evaluate its prospects of success or otherwise without knowing whether any of the alleged acts were witnessed, nor by whom.
20 The Claimant has clearly failed to comply with order of the Tribunal, has failed to provide any reasons for her failure to do so and has not made any attempt to present any case to the Tribunal today.
21 The order providing for today's pre-hearing review was, in effect, a courtesy to the Claimant, giving her a chance to set her house in order. It goes beyond that which is required by the "unless" order. The Tribunal notes that this case could have been struck out under Rule13(2) without the Claimant having been given the benefit of this hearing. The Claimant has failed to take advantage of the opportunity offered to her by the Tribunal to attend today.
22 Under the circumstances, it would be unjust to the Respondent for the Claimant's claim to proceed. The Originating Application is therefore struck out by reason of the Claimant's failure to comply with the Orders of 8 December 2004 and 21 January 2005."