United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T BRETT (The Appellant in Person)
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

Practice & Procedure – striking out/dismissal & Appearance/Response & Review

Non – acceptance of response (form incomplete). Correct form sent in time, but Employment Tribunal declined to pay excess postage (Respondents franking machine missed envelope, in post). Review application rejected. Appeal against review decision allowed.


 


HIS HONOUR JUDGE PETER CLARK

1. This case is proceeding in the Watford Employment Tribunal. The parties are Mr Roy Brown, Claimant, and SKS Limited, Respondent. There is before me, with the permission of HHJ Serota QC, a full hearing of an appeal by the Respondent against the decision of a Chairman, Mr Mahoney, contained in a letter from the Tribunal dated 29 March 2007 refusing the Respondent's application for review of that Chairman's earlier decision dated 19 March not to accept the Respondent's response to the Claimant's claim of unfair dismissal and unlawful deductions from wages.
2. The Claimant, represented by solicitors in his Answer, has indicated that he does not resist the appeal. He has taken no further part in the appeal process and does not appear nor is he represented today. The Respondent appears through Mr Trevor Brett, its managing director, who has had conduct of the case throughout.

Background

3. The Respondent is a key cutting business. The Claimant was employed as an assistant warehouse manager at their Berkhamsted warehouse. It is the Respondent's case that the Claimant received payment in cash from a customer but pocketed the money. Disciplinary proceedings followed. At a disciplinary hearing held on 6 December 2006 the Claimant was dismissed. He appealed that decision internally but his appeal was dismissed on 12 January 2007. On 23 January he presented his claim on form ET1 to the Employment Tribunal. A copy was transmitted to the Respondent informing the company that it had until 22 February to present a response (ET Rules of Procedure 2004, rule 4(1)).
4. It is Mr Brett's account before me that a full response on form ET3 was sent by post to the Employment Tribunal with a copy to ACAS on 16 February. This morning he has produced to me an envelope and its contents which shows that on 16 February SKS franked the envelope which contains a full form ET1 and separate typed response under section 5 of that form. It is clear that the franking process was incomplete and as a result the post office required the receiving party to pay a surcharge of £1.23. It seems probable that the envelope and contents were delivered to the Watford Tribunal office which declined to pay the surcharge. There is a date-stamp 22 February which suggests that on that date, if not before, the package was delivered to the Tribunal offices. The package was not finally returned to the Respondent until, I note, 27 April 2007.
5. On 22 February, Mr Brett spoke with a representative of ACAS, Mr Wilkins, who informed him that having spoken to the Claimant, the Tribunal may not have received the response. ACAS received their copy on about 19 February. In these circumstances, Mr Brett promptly telephoned the Tribunal at 12.28pm on 22 February. He spoke to a member of staff, Angela, who told him that the response had not been received. Mr Brett had, as I indicated, completed the standard form ET3 together with a separate detailed response to the claims at section 5 in typescript. He had retained a copy of the latter but not the former. He straight away faxed over the section 5 response and asked for a blank form ET3 which he received and promptly completed and returned it to the Tribunal on 5 March.
6. By the first decision letter of 19 March the Chairman rejected the response because it did not comply with the requirements of rule 4(2). That is, the response was not in the prescribed form, a mandatory requirement since 1 October 2005.
7. Upon receipt of that decision Mr Brett wrote to the Tribunal on 20 March applying to "appeal against the Chairman's decision". He explained what had happened in brief terms. The Chairman treated that letter as a review application and summarily rejected it under, I infer, rule 35(3). The reason given was this:

"Your response cannot be accepted on the grounds set out on the Tribunal's previous letter dated 19 March 2007. The reasons put forward by the Respondent are not valid reasons for accepting the response."

That letter went on to advise the Respondent of the prospect of appealing to the EAT, an avenue now pursued.

The Appeal

8. It is axiomatic that appeals to the EAT are on points of law only (Employment Tribunals Act 1996, section 21(1)). I can only interfere with the Chairman's review decision if he can be shown to have exercised his discretion on wrong legal principles. I cannot simply exercise my own discretion de novo (see Medallion Holidays v Birch [1985] ICR 578, Wait P.). Further, the fact that the Claimant does not resist this appeal does not of itself mean that the appeal succeeds (EAT Practice Direction, paragraph 15.3).
9. Did the Chairman fall into error? In my judgment the original decision to reject the response was entirely correct. By faxing the section 5 response only rather than the full form ET3 on the last day for responding, the Respondent fell foul of the mandatory requirements of rule 4(2). However, the review application raised a different question. Was it just and equitable; that is, in the interest of justice (see rule 34(3)(e)) to grant an extension of time for lodging a response. (See Moroak v Cromie [2005] ICR 1226 per Burton P.). The Chairman in his review letter simply states that the reasons put forward by the Respondent are not valid reasons for accepting the response. However, that compendious statement does not in my judgment cover both aspects of the tests for determining whether or not to extend time, to be found originally in the judgment of Mummery P. in Kwik Save Stores Ltd v Swain [1997] ICR 49 adopted by Burton P. in Moroak and also reflected in what is now rule 33 which deals with the review of default judgments, namely (1) is there a good explanation for the delay in lodging the response and (2) does the Respondent have an apparent defence to the claim on the merits. Even if the Chairman was entitled to answer the first question in the negative, he does not appear to have addressed the second question. Further, he does not appear to have balanced the relevant prejudice to the parties of allowing or refusing the extension of time on review (see Moroak).
10. In these circumstances, I have concluded that he has failed to take into account all relevant factors in reaching his decision to reject the review application under rule 35(3). Thus, he has fallen into error under the Wednesbury principles applicable to this jurisdiction (see Adams & Raynor v West Sussex County Council [1990] IRLR 215).
11. Having identified an error of law the question now is what should be done with this case. Under section 35(1) of the Employment Tribunal Act I can allow the appeal and remit the review application for hearing by an Employment Tribunal, or I can exercise the powers of the Employment Tribunal and conduct a review hearing myself (see Employment Tribunal rule 36(1)).
12. Since the Claimant does not resist this appeal, it seems to me proportionate in the interests of saving expense for the parties and in avoiding delay if I carry out the review myself. Since there is no challenge before me by the Claimant to the account given by Mr Brett and no suggestion by the Chairman that he rejects that account, I do not find it necessary to take evidence on oath. I proceed on the basis of the account which Mr Brett has given me.
13. First, the reasons for failing to lodge the form ET3 in the correct form. I find that the Respondent has put forward a good excuse. I accept that the whole form ET3 was sent to the Employment Tribunal on 16 February. I note particularly that ACAS received a copy on about 19 February. The circumstances in which it came not to be accepted by the Tribunal are related earlier in this judgment.
14. On the last day for lodging the form ET3, it not having been accepted by the Tribunal, once Mr Brett learnt from Acas that the Tribunal may not have received the form ET3 he made immediate inquiries. He was then able to fax a copy of section 5 which he had retained but not the remainder of the form. He asked for a blank copy and completed it on receipt and returned it on 5 March.
15. Secondly, the Respondent in my judgment has a reasonably arguable defence to the claim. The claim of unfair dismissal is resisted on the basis that the Respondent believed that the Claimant had dishonestly retained monies. The allegation is one of gross misconduct. It seems on the face of it that proper procedural steps were taken complying with the statutory dismissal and disciplinary procedure. The unlawful deductions claim is also disputed on the facts.
16. Finally, the balance of prejudice favours the Respondent. I can see no real prejudice to the Claimant in extending time for the response. Conversely, the Respondent would be debarred from defending the claim if the decision to reject the response stands. In these circumstances, I shall allow the review application and revoke the decision to reject the response.

Disposal

17. The appeal is allowed. The decision to reject the response is revoked. I shall grant an extension of time to enter the response so as to validate the response dated 5 March 2007. The case will now proceed to a hearing on the merits. A case management discussion may be directed by the Employment Tribunal.