United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R POWELL (of Counsel) Instructed by: Averta Employment Lawyers Vienna House, International Square Starley Way, Birmingham International Park Solihull West Midlands B37 7GN
For the Respondent	MR B BRITTON (The Respondent in Person)


 


SUMMARY

PRACTICE AND PROCEDURE: Absence of party

Employment Tribunal proceeding in absence of a party. Representative had put wrong hearing date in her diary. Review application dismissed.

Appeal allowed by a majority and case remitted for rehearing. Scope of remission circumscribed by guidance as to points of law arising in the case.


 


HIS HONOUR JUDGE PETER CLARK

1. The parties to these proceedings before the Ashford Employment Tribunal were Mr Bryan Britton, Claimant and Beswick Paper Ltd, Respondent. We shall so describe them. This is an appeal by the Respondent, first against the Judgment of an Employment Tribunal chaired by Employment Judge Barry, sitting on 19 August 2008, promulgated with reasons on 1 September 2008 and secondly against the decision of that Judge to summarily dismiss the Respondent's review application by letter dated 24 September. Mr Britton tells us, as we would expect given the nature of his claims, that the original hearing took place before a full three-member Employment Tribunal. That fact is omitted from the Judgment. It is important. Appeals from a full Employment Tribunal to the Employment Appeal Tribunal which are heard by a Judge alone are a nullity. The Employment Tribunal administration and Employment Judges signing off Judgments must ensure that the correct constitution of the Employment Tribunal is there recorded.

Procedural History

2. The Claimant commenced proceedings in the Employment Tribunal by a Form ET1 presented on 16 May 2008. He there asserted that he was employed by the Respondent as a delivery driver based at their Dartford, Kent premises from 12 March 2007 until 17 March 2008. By his Particulars of Claim he self-described as a black African Caribbean male and complained that he had been dismissed by the Respondent on 10 March 2008 with one week's notice, that dismissal being automatically unfair by reason of the Respondent's failure to comply with the statutory Dismissal and Disciplinary Procedures. He also complained of direct racial discrimination, in that white drivers were given overtime and he was not and further that whereas he was dismissed peremptorily for alleged damage to a company vehicle another, white, employee, Robert Snooks, was accorded a disciplinary process. Further, he contended that, having found new employment with Waitrose on 31 March 2008, that employment was terminated on 25 April 2008 because the Respondent had failed to provide a reference for him and that failure was an act of victimisation contrary to the Race Relations Act 1976 (RRA) (see s2).
3. The Respondent entered a Response to the claim in time. We do not have a dated copy. That Response was prepared by Sarah Blakemore, the Group HR Manager. The first material issue there raised is the Claimant's length of service. The Respondent agreed that his employment began on 12 March 2007 but asserted that it ended on 10, not 17, March 2008. As to the substantive complaints, all of which were resisted, the Respondent contended:

(1) that the Claimant's dismissal and that of Mr Snooks were handled in the same way;

(2) no request for a reference for the Claimant was received from his new employer, Waitrose;

3) he did not complete 1 year's continuous service so as to qualify for unfair dismissal protection.

4. The case was set down for a substantive hearing on 19 August. Both parties received notice of that date. However, Ms Blakemore, so she states in a witness statement lodged in this Employment Appeal Tribunal pursuant to an Order of HHJ Burke QC dated 20 November 2008, incorrectly entered the date as 19 September in her diary.
5. Thus, on 19 August, the Claimant attended before Judge Barry's Employment Tribunal in person. The Respondent did not appear and was not represented. On that day Ms Blakemore was attending a consultation process at Tolworth Tower, Surrey, having travelled down from Manchester that morning.
6. It seems that a member of the Ashford Employment Tribunal staff telephoned the Respondent at their Oldbury Office to be told that the Respondent believed that the hearing was due to take place in September. Nobody from Oldbury contacted Ms Blakemore and she remained unaware that the Employment Tribunal hearing was taking place that day. The first she knew of it was when she received a telephone call from the Claimant enquiring about his payment in connection with his Employment Tribunal claim. The Employment Tribunal had decided to proceed with the case on 19 August, heard evidence from the Claimant and, by its Judgment, upheld his claims of unfair dismissal and racial discrimination and awarded him the total sum of £14,019.19 compensation and made a preparation time order of £749 in his favour. We shall return to the detail of that Judgment later.
7. Having received the Employment Tribunal Judgment and reasons dated 1 September Ms Blakemore wrote to the Employment Tribunal requesting a review of the Judgment, having consulted the booklet 'The Judgment' which accompanied it. She referred particularly to the ground for review that the Judgment was made in the absence of a party (Employment Tribunal Rule 34(3)(c)).
8. That review application was considered by Judge Barry, who refused it by letter dated 24 September. His reason for doing so was stated to be:

"The Respondent has given no explanation for the failure of its staff to make arrangements for post sent to the address stated in the ET3 to be dealt with in a timely manner."

9. At this point the Respondent instructed Averta Employment Lawyers to act on their behalf. They wrote to the Employment Tribunal on 26 September, giving the Respondent's explanation for their non-attendance, that Ms Blakemore, under considerable pressure of work due to dealing with the acquisition of another business, had entered the incorrect date in her diary. An offer was made to pay the Claimant's costs thrown away and an opportunity for Ms Blakemore to give an oral explanation to the Employment Tribunal was sought.
10. Judge Barry responded to that further application by letter dated 28 October 2008. He said:

"He has carefully considered the explanation put forward in your letter, and has paid particular regard to the whole of the Judgment of the Employment Appeal Tribunal in the case of PJ Drakard & Sons Limited v Wilton (1977) ICR 642. Having regard to this, the Respondent now having had the opportunity to elaborate upon the grounds of the application, he is still of the view that the application has no reasonable prospect of success, and it is accordingly refused."

11. Meanwhile, on 10 October 2008, the Respondent lodged a Notice of Appeal to the Employment Appeal Tribunal.

The Employment Tribunal Judgment

12. The Employment Tribunal reached the following conclusions material to the appeal:

(1) that since the Respondent had received the Notice of Hearing listing the case for 19 August even although it appeared following the Employment Tribunal telephone call they believed it was in September, the Employment Tribunal would proceed to hear the case, taking into account the Respondent's response.

(2) that the effective date of termination was 10 March 2008, but since a week of employment includes part of a week the Claimant had completed 1 year's service. In any event he could also include an additional one week's statutory notice to pass the 1 year threshold.

(3) the Claimant's dismissal was automatically unfair because the Respondent had failed to follow the statutory Dismissal and Disciplinary Procedures; it was also procedurally unfair under s98(4) Employment Rights Act 1996 (ERA) in that there was no disciplinary hearing and no proper investigation into the allegation that he had damaged a company vehicle, the Respondent's reason for dismissal, had been carried out.

(4) the dismissal was directly discriminatory on grounds of the Claimant's race in that he was peremptorily dismissed whereas Mr Snooks was afforded a proper disciplinary procedure. That was prima facie evidence of unlawful direct discrimination and the Respondent had provided no explanation unconnected with race. Accordingly that complaint was made out.

(5) Although not mentioned in the Judgment, at paragraph 4.5 the Employment Tribunal identify, as one of the issues in the case, whether the Claimant was victimised by the Respondent for having presented his complaint to the Employment Tribunal by denying him a reference. They return to that issue at para 29 where they said:

"Furthermore, the Respondent untruthfully asserted in its response that it had received no request for a reference from Waitrose Ltd, to which company the Claimant had applied for and obtained employment. The fact that a reference was finally sent on 11 July, long after the proceedings were begun, leads the Tribunal to conclude that the Respondent was thereby victimising the Claimant for bringing these proceedings before the Employment Tribunal."

13. Based on their liability findings the Employment Tribunal awarded the Claimant:

(1) a minimum 4 weeks basic award under s.120(1A) ERA.

(2) a compensatory award, based on past and future loss of earnings, less monies earned during the relevant period, plus £300 for loss of statutory rights, totalling £3,377.06 in all.

(3) a 50 per cent uplift of both the basic and compensatory awards, increasing that total to £7,019.19

(4) a 'Vento' award for injury to feelings of £7,000 which, as we read paragraphs 32 and 33, encompassed both the findings of direct race discrimination and victimisation.

Finally, the preparation time order was dealt with at paragraph 35 in this way:

"The Claimant made an application for a preparation time order under Rules 42 to 46 of the Employment Tribunal's Constitution and Rules, Regulations 2004. The Tribunal accepts the evidence of the Claimant as to the total time taken by him in preparing for the hearing. The current rate at which preparation time orders are made is £28.00 per hour and the Tribunal makes an order for the Respondent to pay to the Tribunal the sum of £749.00 based on 26¾ hours."

The Appeal

14. Mr Powell's principal submission on behalf of the Respondent is directed (a) to the Employment Tribunal's decision to proceed to hear the substantive case in the absence of the Respondent and/or (b) the Judge's rejection of the Respondent's review application.
15. Procedural appeals of this type are subject to the principles identified by Wood P in Adams & Raynor v West Sussex C.C. [1990] IRLR 215. Three questions arise for consideration:

(a) was the order made within the powers given to the tribunal?

(b) has the discretion been exercised within guiding legal principles?

(c) can the exercise of discretion be challenged on Wednesbury principles?

(a) Tribunal powers

16. Rule 27(5) of the Employment Tribunal Rules of Procedure 2004 provides that if a party fails to attend or to be represented at the Hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the Hearing to a later date. By Rule 27(6), where the employment tribunal wishes to dispose of the proceedings under sub-rule (5) it must first consider any information in its possession made available by the parties.
17. Pausing there, plainly the Employment Tribunal had power to dispose of the proceedings in the absence of the Respondent, it having taken into account the Respondent's Form ET3 (reasons, para 3).
18. Further, by Rule 35(4) the Employment Judge alone may refuse a review application if he considers there are no grounds for the decision to be reviewed under Rule 34(3) or where there is no reasonable prospect of the decision being varied or revoked.
19. Thus Judge Barry had the power to make the order which he did on 24 September, later affirmed on 28 October.

(b) Guiding legal principles

20. Mr Powell, relying on this Employment Appeal Tribunal's reasons for allowing an appeal by the claimant against the order of an Employment Tribunal dismissing her claims when neither party appeared in Mills v Johnson (EAT/1107/00 19 July 2001), para. 12, submits;

(a) that the Employment Tribunal did not, on the face of its reasons, consider adjourning the hearing on 19 August. We reject that submission. We accept Mr Britton's account of the proceedings, he having been present. The possibility of an adjournment was discussed. He opposed it. The Employment Tribunal decided to proceed with the hearing.

(b) the representative of the Respondent who was contacted by the Employment Tribunal staff that morning ought to have been advised of the Respondent's right to apply for an adjournment; see Holland v Cyprane Ltd [1977] ICR 355. In Holland the claimant wrote to the Tribunal prior to the hearing of his claim stating that he would be unable to attend the hearing due to ill-health. The secretariat wrote to him recommending that he appear without advising him of his right to apply for an adjournment. The tribunal dismissed the claim in his absence and a review application was refused by the tribunal chairman. On appeal the Employment Appeal Tribunal (Cumming-Bruce J presiding) allowed the claimant's appeal against the review decision and remitted the matter for a full review hearing.

Discussion

21. Although Mr Britton appeared before us in person he had the advantage of detailed written submissions prepared on his behalf by Mr Andrew Bruce of counsel as a volunteer adviser at Swanley Citizens Advice Bureau. We have paid close attention to those submissions and invited Mr Powell's response.
22. Mr Bruce relies on the powers granted to the Employment Tribunal by Rule 27(5) and (6); he points out that, in accordance with the guidance of Burton P in Cooke v Glenrose Fish Co. Ltd [2004] IRLR 866 the Employment Tribunal made contact with the Respondent when it failed to appear and submits that the fault lay entirely with Ms Blakemore in failing to enter the correct date in her diary; that further the Respondent had failed to comply with earlier case management directions for preparation for the hearing and that 'costs' would not compensate the Claimant for the stress of having to wait for his claims to be resolved if an adjournment was ordered.
23. Further, having initially rejected the Respondent's review application the Judge reconsidered that matter in the light of the detailed representations made by the Respondent's new legal advisers in their letter of 26 September.
24. The members of this Tribunal are divided. The majority are just persuaded by Mr Powell that the Employment Tribunal's Judgment cannot stand for the following reasons. Whilst the diary error was entirely the fault of Ms Blakemore the power to dispose of proceedings in the absence of a party is not designed to punish a party for its mistakes. As Mr Powell submits, the Employment Tribunal is required to balance the interests of both parties in doing justice between them in accordance with the overriding objective, including dealing with the case in ways which are proportionate to the complexity or importance of the issues and ensuring that the case is dealt with expeditiously and fairly.
25. Based on the information obtained by the Employment Tribunal staff the Employment Tribunal knew that morning that the Respondent had made a mistake as to the date of hearing; they thought it was September although the Notice of hearing plainly stated August. They had entered a detailed response indicating that the claims were firmly contested. In the absence of evidence from the Respondent they were bound to fail (a) to show a potentially fair dismissal (reasons para. 24) and (b) provide any explanation for the alleged acts of direct racial discrimination and victimisation found.
26. The majority agree with Mr Powell that it is instructive, by way of analogy, to look at the recent jurisprudence on striking-out claims. By way of example he cites the principles adumbrated by Burton P in Bolch v Chipman [2004] IRLR 140, para 55. That was a case of unreasonable conduct of the proceedings; the respondent, an Employment Tribunal found, had threatened the claimant. The employment tribunal struck out the response and upheld the claimant's claim of unfair dismissal. On appeal the Employment Appeal Tribunal allowed the respondent's appeal and remitted the case for rehearing. It was necessary for the employment tribunal to first consider whether a fair trial was possible.
27. That approach has since been endorsed by the Court of Appeal; see Blockbuster v James [2006] IRLR 630, N. Glamorgan NHS Trust v Ezsias [2007] IRLR 603 and Abegaze v Shrewsbury College [2009] EWCA Civ 96.
28. We readily acknowledge that in a case where a party, without explanation, has simply failed to attend, an employment tribunal will normally be justified in proceeding with the hearing. However, where an explanation for the non-appearance has been given and no advice about requesting an adjournment is proffered, we think that the employment tribunal is bound to consider the balancing interests of the parties and whether an adjournment, on terms as to costs (including, as here, the wasted attendance costs) ought to be ordered. That was not done in this case. Further, at the stage at which the Judge received the Respondent's full explanation, it was, in our judgment, necessary that the Judge at least considered that explanation. On the face of his letter dated 28 October he gives no reasons for either rejecting it (and before he did so a full review hearing ought to be held) or concluding that it could not lead to the original Judgment being revoked or varied.
29. For all these reasons the majority would uphold this part of the appeal. We shall direct that the original Judgment of the Employment Tribunal be set aside and the case remitted to a fresh Employment Tribunal for rehearing.
30. The minority member, Professor Corby, would dismiss the appeal for the following reasons.
31. She cannot see any error of law. As Mummery U stated in Roberts v Skelmersdale [2003] EWCA Civ 954, r.27(5) 'confers a wide discretion on a tribunal'. It is for Parliament, not the Employment Appeal Tribunal, to fetter the discretion of the Employment Tribunal. Moreover, the Employment Tribunal telephoned the Respondent in accordance with good practice (Cooke v Glenrose Fish Co Ltd [2004] IRLR 866).
32. This Employment Tribunal did not say in terms that its exercise of discretion was made in the light of the overriding objective to deal with cases justly (Reg 3). As noted above (para. 20), however, the possibility of an adjournment was discussed and the Claimant opposed it. In those circumstances the minority requires some evidence that the overriding objective was disregarded. Without any such evidence, she cannot make the leap from the fact that the overriding objective was not set out in the judgment to the view that the Tribunal ignored the overriding objective and made an error of law or acted perversely.
33. As to the Review, the minority notes that Judge Barry, in his letter of 28 October, although not going into detail, noted that he had carefully considered the Respondent's explanation for non-appearance in the light of P. J. Drakard & Sons Ltd v Wilton [1977] ICR 642; see para 10 above. The minority is of the view that this suffices.

Remission

34. The majority view prevails and the appeal is allowed.

Having considered a number of substantive grounds of appeal, we should resolve certain matters of law for the benefit of the next employment tribunal in order to precisely circumscribe the scope of the remission.

(1) Continuity of employment

35. In determining whether the Claimant had completed one year's continuous employment the following provisions apply:

(a) contrary to the findings of the Barry Employment Tribunal (paragraph 1) for the purposes of calculating continuous service a year means a year of 12 calendar months (ERA s210(2)(b).

(b) however, it is correct to say that under s97(4) the end date of employment is extended by such period of notice as the claimant was entitled to under s86. In the present case that is one week's notice (s86(1)(a)). Mr Powell points out that the entitlement under s86(1) is subject to s86(6) which provides;

"This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party."

36. Whilst it is true that the Respondent's reason related to the Claimant's conduct, alleged damage to company vehicles, it is plain on the face of the letter of dismissal from Ms Blakemore dated 10 March 2008 that the Respondent did not treat the contract as terminable without notice for the purposes of s.86(6). That letter acknowledged that the Claimant was entitled to one week's pay in lieu of notice.
37. Consequently the relevant dates of employment were 12 March 2007 until 17 March 2008. That is more than 12 calendar months. The Claimant had one year's continuous service entitling him to bring his claim of unfair dismissal.

(2) Automatically unfair dismissal

38. Without making any concession on behalf of the Respondent, Mr Powell was unable to point to any evidence that the Respondent had complied with the Dismissal and Disciplinary Procedures in the Claimant's case (compare the step 1 letter dated 6 February 2008 sent to Mr Snooks). In these circumstances we shall not remit the finding of unfair dismissal contrary to s.98A(1) ERA to the Employment Tribunal. That finding will stand.

(3) Unfair dismissal remedy

39. Although the question as to whether the dismissal was unfair substantively and/or procedurally under s98 ERA is strictly moot as a matter of liability, the Respondent will not be precluded at the remitted hearing from arguing (a) that the Claimant contributed to his dismissal and/or (b) the Polkey principle in relation to procedural unfairness.
40. As to the statutory uplift under s31 Employment Act 2002 assessed by the Barry Employment Tribunal at 50 per cent, that will now be open to argument before the next employment tribunal, save that the uplift applies only to the compensatory award and not the basic award, as Mr Bruce correctly conceded; s118(1)(b) ERA.

(4) Burden of proof

41. Whether the complaint of direct race discrimination is based on the Claimant's race or colour, in either event the reverse burden of proof under s54A RRA applies. The approach of the Employment Appeal Tribunal in Abbey National v Chagger [2009] ICR 624 is to be followed, rather than that in Okonu v G45 Security Services (UK) Ltd [2008] ICR 598. However, s54A does not apply to the claim of victimisation; see Oyarce v Cheshire County Council [2008] ICR 1179.

(5) Preparation Time Order

42. Even had we rejected Mr Powell's principal submission we should not have allowed this part of the Barry Employment Tribunal's order to stand. No explanation is given at paragraph 35 of their reasons as to why it was appropriate to make such an order in light of Employment Tribunal Rule 44.
43. However, we expressly make under Rule 44(1), applying our powers under s35(1) Employment Tribunals Act 1996, a preparation time order in respect of any preparation time spent by the Claimant as a result of the hearing held on 19 August 2008, which has been effectively adjourned as a result of our Order in this appeal. The non-attendance of the Respondent on that occasion was entirely the fault of Ms Blakemore in making a wrong entry in her diary. The precise amount of that order is remitted to the fresh employment tribunal which may receive submissions on that question from the parties, thus satisfying Employment Tribunal Rule 42(7).

(6) Directions

44. We note that a dispute exists between the parties as to whether the Respondent unilaterally failed to comply with the earlier case management order. It is to be hoped that a revised timetable can be agreed between the parties, failing which either party is at liberty to apply to the Employment Tribunal for further directions.

Costs in the appeal

45. Mr Bruce makes application on behalf of Mr Britton for his expenses in conducting the appeal. In light of our majority decision it would not be appropriate to make any order.