United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTYN WEST (Representative) Peninsula Business Services Ltd Advocacy &Litigation Department Riverside, New Bailey Street Manchester Lancashire M3 5PB
For the Respondent	Written submissions


 


SUMMARY

PRACTICE AND PROCEDURE: Postponement or stay

PRACTICE AND PROCEDURE: Review

Employment Tribunal gave Judgment at a hearing in the absence of the Respondent. It held a review and refused to vary the Judgment. It erred in taking account of the Respondent's ability to recover from its insurers, and in not accepting that the office had not made a call to the Respondent, the Respondent had made a diary error and sought a postponement before Judgment was made, and shortly thereafter a representative and the Respondent attended.

Substantive and review Judgments set aside, save for costs orders, and full hearing ordered. Observations on Rule 35 (review).


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about Employment Tribunal procedure when a party did not attend and a Judgment was made against it in its absence. This Judgment is the view of the court to which all members have contributed. We will refer to the parties as the Claimant and the Respondent.

Introduction.

2. It is an appeal by the Respondent in those proceedings against the Judgment of an Employment Tribunal, registered with reasons on 28 October 2008 under the chairmanship of Employment Judge Self sitting at London South. The parties were represented. The Claimant claimed unfair dismissal; the Respondent denied the claim. The Employment Tribunal at its substantive hearing, which took place on 30 June 2008 registered with reasons on 24 July 2008, had found that the Claimant was unfairly dismissed and ordered the Respondent to pay £6,713.00 by way of a compensatory award and £375.00 compensation for unlawful deductions and accepted the Claimant's claim of breach of contract and ordered the Respondent to pay £1,425.00.
3. At that hearing the Claimant attended in person and no one came from the Respondent. The Respondent sought a review which is the subject of the present appeal. The Tribunal recorded that it dismissed the application for a review. As I have made clear in a number of judgments see Secretary of State v Rance [2007] IRLR 665 and Chowles [2009] EAT 0473/08, this represents an error. Rule 35(3) of the Employment Tribunal Rules requires a preliminary consideration by an Employment Judge of an application for a review of a judgment. Unless the judge refuses the application it is mandatory for the case to be heard at a review (see Rule 35(4)).
4. Not only is that the clear rule, it is obvious from looking at the record that there was a review since the three-person Employment Tribunal convened at a hearing on 15 October 2008 with both parties legally represented and evidence appears to have been called. What the Tribunal meant to say was that the application for a review was granted and the judgment was affirmed. Nevertheless no substantive error occurs as a result of that depiction.

The facts

5. The Employment Tribunal recorded the events relating to the original hearing in the following way

"1. […] At the hearing on 30 June 2008 neither the Respondent nor their representative was present at the proposed start time of 10.00am. The Tribunal waited until 10.30am and then decided that the hearing would proceed in the Respondent's absence, no notification or reason having been given. It was clear on the Tribunal's file that the notice of hearing had been sent out to both parties on 6 June 2008.

2. Whilst the Tribunal was deliberating having heard the evidence, a fax timed 11.24am was received from the Respondent requesting an adjournment on the basis that no notice had been given of the hearing. The evidence before the Tribunal was that the appropriate notice of hearing had been sent and after considering the overriding objective the Tribunal rejected the Respondent's application and continued with their deliberations finally making the judgment detailed above. It was accepted today that in actual fact the notice of hearing had been received by Peninsula. On 8 July an application was made by the Respondents to review that judgment on the grounds that the decision was made in the absence of the Respondent pursuant to Rule 34(3)(c) of the Rules of Procedure.

4. In order to succeed on this ground that party must have a good reason for his or her absence from the hearing. Evidence was placed before the Tribunal today on behalf of Ms Stone and also Mr Delaney. Ms Stone is employed by Employment Law Advocates Limited who have work sub contracted to them in order to do the advocacy when cases look likely to go to a Tribunal hearing. These cases were allocated to Ms Stone to conduct the advocacy. She told the Tribunal in evidence that she was originally due to do the Tribunal first listed on 12 June 2008 which was then subsequently vacated. This in actual fact is incorrect because the original date of the hearing was 29 May 2008. Ms Stone accepted that she had not checked her records on this particular point.

5. It was accepted by the Respondent that Peninsula's head office in Manchester had received the notice of hearing. We were told that the normal procedure is that the document is scanned and then e-mailed to Employment Law Advocates and also a postal copy is also sent. There is evidence that the document was sent but not that it was received. We were also told that on this particular occasion no e-mail version was sent either. Upon further questioning it became apparent that there was no procedure in place at Employment Law Advocates to confirm receipt of instructions.

6. Thus it was through this concatenation of circumstance that although Peninsula had been notified that the case was to take place on 30 June that had not reached the Employment Law Advocates and hence nobody attended on the day. By chance there was another representative from Peninsula in the London South building on the day who heard the case being called and recognised the same. Telephone calls were put in place in order to alert head office of the situation who in turn alerted Employment Law Advocates. The letter was sent at 11.24am asking for the hearing to be vacated and then Mr Delaney of the Respondent and Ms Stone attended at the Tribunal but by that time the judgment had already been made. Those are the background circumstances to the case.

7. It is quite clear to the Tribunal that the fault lies solely with the Respondent's representatives in this case who although, perhaps unfortunate, it is quite clear that adequate processes and procedures were not put in place to ensure that situations such as this do not occur. From the evidence we have heard we conclude that the Respondent's representatives acted unreasonably and or negligently in failing to attend the hearing on 30 June. Taking into account all the factual circumstances described above we consider that the Claimant will be prejudiced by further delay to this claim on which he has been partially successful. There is no prejudice to the Respondents themselves on account of the fact that no doubt they will be able to apply to the Respondent's indemnity insurers in order to receive redress for the situation. In those circumstances we are not prepared to review our decision of 30 June and it stands."

On the basis of that material, the Tribunal decided not to change its original judgment. It then made an award of costs of £2,852.35.

The submissions.

6. On the appeal the Claimant has written indicating that he seeks justice for an injustice was done to him by the Respondent and he had justice twice at the Employment Tribunal and regarded the current process at the EAT as stressful. He had no money with which to defend himself today. We have taken account of the material which he has put before us.
7. Mr Martyn West of Peninsula Business Services Ltd, representing the Respondent, makes four short points. First he contends that the Employment Tribunal erred in that it failed at the review to consider whether or not it should have made a telephone call to determine the reason why the Respondent was not in attendance. As he said, that in itself at the original hearing was not a reason - a Tribunal may or may not make a call. But it becomes a reason to be considered when a review is conducted.
8. Secondly, although the Employment Tribunal is not obliged to make such a call, in practice it ought to do so: see Cooke v Glenrose [2004] IRLR 866, which we accept is remarkably similar on the facts to ours, that is a representative through administrative error failing to notice a hearing date. The Employment Tribunal, Mr West submits, failed to pay attention to the fact that a party was on the way while the deliberations were going on and the Respondent and its representative did actually attend shortly after Judgment was given. We consider there is force in that. This was not a case, as Mr West put it, of a party hearing the numbers and then deciding to appeal or to review. On the very day the error had been realised and attempts were made to rescue the situation.
9. Thirdly, Mr West contends that the Tribunal took account of an irrelevant factor or a factor which proved to be determinative when it should, at the most, have been give little weight - that is the possibility of recovery from insurers. In Cooke v Glenrose this very issue was considered and Burton P said this,

"(2) It may be a factor that the application may have a remedy against his solicitors, but we are entirely satisfied that this is not a determinative factor, and indeed if anything is very low down the pecking order. Mr Reece again in his very able submissions has drawn our attention to a number of authorities relating to situations where originating applications are out of time; and where the reason for the delay and the issue of reasonable practicability in terms of complying with the time limit revolves around negligence by the solicitor. Those cases include: Capital Foods Retail Ltd v Corrigan [1993] IRLR 430, Dedman v British Building Ltd [1973] IRLR 379, Digital Equipment (Scotland) Ltd v McClymont (unreported, EAT 23 July 1997 EAT/311/97) and Camden & Islington v Serck Services (unreported EAT 15 November 1984, EAT/902/83) was directly relevant.

However, in all those cases, a statutory time limit had a very narrow exception of reasonable practicability, and in order for a party to bring himself/herself within it, it was necessary to show an absence of fault by the relevant solicitor, because, almost by definition, if it could reasonably have been done had the solicitor not been negligent, then it was reasonably practicable to do it.

However, we are not facing here, in relation to a review where all that is required is an explanation as to the absence of the party, a situation in which it needs to be proved that there was no fault, and therefore, to that extent, the authorities to which Mr Reece has drawn our attention do not assist.

To note that the applicant would have a remedy against his solicitors may be one thing but, as we have indicated, it does not appear to us to be a material factor. What in fact underlies this suggestion would be that an applicant who, it is obvious, must have been put in touch with Thompsons by his union, would be left without the assistance of those same solicitors to consider suing such solicitors for negligence, and although, of course, on the face of it, it is right to say that negligence would be largely proved, the issue would then arise as to what the quantum of his loss would be, and thereby, by satellite litigation, it would be necessary to prove himself against his old solicitors, in the usual way of a solicitor's negligence case, what his chances of success would have been had he been entitled to pursue his claim against the respondent; and that claim would have to be pursued in the High Court or County Court and not in an employment tribunal. it appears to us that that is much too extreme a factor to be determinative."

10. Fourthly, Mr West contends that the Tribunal took account of a delay and this was wrong because the parties were present and available should the review succeed in establishing a change of the decision to hear the case on its merits on that day. There would have been no further delay.

Conclusions

11. Mr West is correct and so we will set aside the Judgment on review. This was an error by its insurers Peninsula. The Tribunal wrongly elevated the possibility of recovery from insurers to become a very important issue in its decision and it was wrong to do so when it held that there was no prejudice to the Respondent itself because of recovery. That is not a proper consideration. Or, if it is, it should not have weighed so heavily in this case. The Tribunal also should have noted that it is common practice for a phone call to be made and none was made here, the Employment Tribunal being satisfied that notice of hearing had been properly given to Peninsula. In the event the Respondent was seeking a postponement and did send its representative along and that should have provided a sufficient basis for the Tribunal to change its decision. The issue of delay is unimportant because the case could have been determined on day of the review, as the parties were ready.
12. So, on the basis of those four submissions this appeal will be allowed. Mr West then contends that we should decide the issue ourselves. Now that we have detected an error of law it is open to us to decide the matter with the powers of the Employment Tribunal. There is nothing that we can see that could be added to the information which is provided in the Tribunal's Judgment. We are thus in a position to make a decision on whether the Judgment which was ordered against the Respondent should be set aside by way of our own review.
13. It is in accordance with the overriding objective that there not be a further stage interposed in these proceedings. Both parties want finality. They will not get that if this simply goes back for a further review. In our judgment on this material the review which was granted should have resulted in a change of order, so as to set aside the original Judgment. That is the judgment which we now make. The original Judgment is set aside and the case will now be heard on its merits.
14. We are conscious that in making this decision the Respondent, through Peninsula, has not sought to be released from the order made for costs so that the order in respect of the Claimant's costs will remain in place - that is paragraph 2 of the order - so that that cost order is to the benefit of the Claimant in any event. The order in respect of the Respondent's costs payable to Peninsula at paragraph 3 of the Judgment will also remain in place. This, we think, does justice to the case and to the administrative errors which were laid, as Mr West squarely accepts, at the foot of Peninsula.