United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SHAUN ESPRIT (of Counsel) Instructed by: Messrs Rock Solicitors 4-6 Westbury Avenue Turnpike Lane London N22 6BN
For the Respondent	MR GEORGE THOMAS (of Counsel) Instructed by: Partnerships in Care Legal Services 2 Imperial Place Borehamwood Hertfordshire WD6 1JN


 


SUMMARY

PRACTICE AND PROCEDURE

Striking-out/Dismissal

Review

1. The Tribunal ought to have convened a hearing in order to determine the Claimant's application for relief against sanctions – rules 35(3) and 36(1) and St Albans Girls' School Governing Body v Neary [2009] EWCA Civ 1190 discussed. In any event fairness required that the Tribunal convene a hearing before making a critical finding of fact adverse to the Claimant.

2. In any event the Tribunal's reasons for that critical finding of fact were inadequate.


 


HIS HONOUR JUDGE RICHARDSON

2. By this appeal Mr Roger Opara seeks the re-instatement of his claim for unfair dismissal against his former employers Partnerships in Care Ltd ("PIC"). Mr Opara had succeeded in establishing unfair dismissal; but at a remedies hearing on 27 November 2008 an order was made striking out his claim unless he provided certain bank statements by a specified date. Most of the bank statements were provided; but some were provided a day late. He applied for relief against the sanction of striking out. By a judgment dated 1 May 2009 the Employment Tribunal (Employment Judge Mahoney presiding) refused his application.
3. A key feature of the reasoning of the Tribunal for refusing the application was that Mr Opara had failed initially to disclose another bank account; that he had said on oath that he had no other account; and that he had "deliberately not disclosed all relevant documents necessary for the remedy hearing knowing full well that they should be disclosed". Mr Opara challenges this finding. Essentially the case on appeal is that the finding was made without a hearing when a hearing was required, and that it was in any event inadequately reasoned.

The Factual Background

4. Mr Opara is a fully qualified and registered psychiatric nurse. For 10 years from 1 May 1997 until his dismissal on 24 May 2007 he worked part time for PIC at Bedford Lodge Psychiatric Hospital. With effect from 24 May 2007 he was summarily dismissed. His claim for unfair dismissal was upheld by the Tribunal following a hearing in October 2008, although he was found to bear contributory fault to the extent of 25%. A remedies hearing was set for 27 November.
5. Mr Opara is also a solicitor, having qualified in the year 2000 while he was working at the Hospital. He became a partner in a firm. However there were disciplinary proceedings as a result of which he was reprimanded – not, as we understand it, for any personal breaches of professional conduct, but by reason of his responsibility as a partner for others. He has worked as a solicitor since the reprimand, but not as a partner.
6. Mr Opara desired compensation for unfair dismissal. His case ran as follows. He had been unable to obtain work as a registered nurse; he believed that this was due in part to the fact that he had been summarily dismissed from the only nursing employment he had in the last 10 years. He had been able to do some work as a solicitor, but not a great deal; and he would have been able to do this work in any event even if he had been employed part-time by PIC. He and his wife had re-mortgaged their house. His wife was also earning.
7. PIC was sceptical about this case, arguing that Mr Opara ought to have mitigated his loss by obtaining alternative employment. Further than this, PIC questioned whether he actually had earned more than he was disclosing. At the conclusion of the liability hearing it was expected (though no order was made) that Mr Opara would provide disclosure of relevant documents concerning his earnings and sources of support. Mr Opara provided various documents, including documents concerning the remortgage and a linked bank account. Shortly before the remedies hearing PIC pressed for more bank statements. Mr Opara objected to disclosing further statements, but said he would bring them to the hearing for the Employment Tribunal to see.
8. It is important to keep in mind the purpose for which disclosure of bank statements was relevant. It was to see whether Mr Opara's case about his income was true. If the bank statements revealed other substantial sources of income – for example from work as a solicitor or a nurse - they would undermine his case. The mere fact that Mr Opara had capital of his own would not undermine his case. He would have been entitled to be compensated for his loss of earnings irrespective of whether he had his own capital.
9. On the day of the remedies hearing Mr Opara came with 75 sheets of bank statements for an account in his name with Lloyds TSB ("the current account"). Not surprisingly, PIC's counsel required time to examine them. Moreover some of the bank statements were missing. The Tribunal adjourned the remedies hearing. It made an order that he provide the bank statements for the current account for the period 11 November 2005 to 6 October 2008. The order was an "unless order". The statements were to be provided by 5pm on 4 December 2008 or the claim would be struck out automatically without further order. He was also ordered to pay costs in the sum of £1,000. For this purpose he gave evidence briefly.
10. In addition to the accounts which he had disclosed, Mr Opara had another account – a savings account with Lloyds TSB ("the savings account"). The existence of this account was plain from the statements which he had brought to the remedies hearing; there was a monthly standing order for £150 passing from the current account to the savings account. However, because Mr Opara only brought the statements to the hearing, they were not examined on that day. The unless order did not cover the savings account. As soon as PIC's solicitors looked carefully at the current account statements, they asked for the statements of the savings account. Mr Opara immediately provided them – on 4 December 2008.
11. It is, we think, important to emphasise that the statements of the savings account do not disclose any other source of income. The only income flowing into it was the £150 standing order. There was no expenditure from it. In a subsequent statement Mr Opara explained that he had set money aside into the account to pay for funeral expenses in the event of the death of his elderly mother. The total in the account was about £4,300.
12. Mr Opara's immediate problem was in providing the missing statements for the current account. He disclosed the 75 sheets in his possession on 2 December. He went to his bank to get the rest; they provided some, which he disclosed late in the day on 4 December. But the bank required up to 14 days to provide the remaining statements. They suggested that he should register for internet banking. He did so. This enabled him to download for himself the missing statements. He served them on 5 December, less than a day after the deadline.

The Application for Relief from Sanction

13. There is no dispute that Mr Opara required relief from the sanction in the order dated 27 November. He applied promptly for such relief. Later he put in a more formal application supported by a witness statement explaining why some statements were delivered late.
14. On 24 February 2009 PIC's solicitors filed a response to the application. In that response they said the Tribunal ought to take into account the failure to provide statement from the savings account until they were specifically asked for. Moreover they said that –

"9. It is counsel's recollection, confirmed by his note of this hearing that:

(a) the Tribunal explained the Claimant was required to disclose the statements for all his bank accounts over the relevant period;

(b) the Claimant confirmed at the hearing on 28 November 2008 that he had no other bank accounts other than account number 77671568;

(c) on this basis, the unless order was made only in respect of account 77671568, but the Tribunal expressly stated that if either disclosure of this account was incomplete, or it emerged that the Claimant did have other bank accounts, his claim would be struck out."

15. On 28 February 2009 Mr Opara's solicitors replied as follows –

"5. The Claimant could not have "confirmed" that account number 77671568 is his only account. Claimant had disclosed his bank account showing his remortgage money and could not therefore have stated that account number 77671568 is his only bank account.

7. …if the Tribunal examines the statement the Tribunal will agree that there is absolutely nothing in it that would prevent disclosure."

16. The Tribunal wrote to the parties on 13 March. The letter said that the full Tribunal would consider the application for relief against sanction "at a hearing in chambers which the parties will not attend". The Tribunal met in chambers on 1 May 2009.
17. In its reasons the Tribunal set out the facts. It said, of the hearing on 27 November –

"4. He claimed that he had brought with him the relevant bank statements but accepted they had not been disclosed to the Respondent. Most importantly the Claimant told the Tribunal on oath that he had no other bank account.

5. It is now clear that that evidence given by the Claimant was untrue as the bank statements for account no: 77671568 disclosed payments to another bank account held by the Claimant. The Claimant was well aware that the Tribunal required him to disclose the statements for all his bank accounts over the relevant period and it was on the basis of the Claimant's evidence that the unless order was specifically made in respect of account no: 77671568."

18. The Tribunal directed itself that it should approach the question whether to grant relief against sanctions in accordance with paragraph 3.9 of the Civil Procedure Rules. It is common ground that this was a permissible approach, although it is now plain that the Tribunal does not have to follow rule 3.9 in any formulaic way: see most recently, St Albans Girls' School Governing Body v Neary [2009] EWCA Civ 1190.
19. The Tribunal then considered the factors set out in paragraph 3.9 of the Civil Procedure Rules. We think it will suffice if we quote five passages from the Tribunal's reasoning.

"13.1. The interests of the administration of justice. The Tribunal accepts the Respondent's submission that the interest of justice require that where a party has been given fair notice, and opportunity, to comply with an "unless order", the consequences of failure to comply should follow, unless a party has a good reason why there was non-compliance. The view of the Tribunal is that the failure of the Claimant to disclose the further bank account and his untruthful evidence given to the Tribunal at the remedies hearing on 27 November 2008 leads the Tribunal to the view that this Claimant has deliberately not disclosed all relevant documents necessary for the remedy hearing knowing full well that they should be disclosed.

13.3. Whether the failure to comply was intentional. The Tribunal is of the view that the failure of the Claimant to disclose the further bank account was intentional as the Tribunal made it clear at the hearing on 27 November 2008 that all the Claimant's bank accounts had to be disclosed.

13.4. Whether there is a good explanation for the failure. The Tribunal considers that there is no good explanation for the Claimant's failure to disclose a second bank account but the failure to provide all the bank statements in respect of the Lloyds TSB account 77671568 has been explained just about satisfactorily.

13.5. The extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol. The Tribunal agrees with the submission of the Respondent that the Claimant is in default of the protocol requiring full disclosure of relevant documentation.

13.9. The effect which the granting of relief would have on each party. The Tribunal cannot be satisfied that the Respondent had disclosed to it all the relevant documents necessary for them to properly present their case at a remedies hearing. The history of the matter leads the Tribunal to the conclusion that it cannot be confident that the Claimant has made full disclosure, particularly by reason of the fact that the Claimant did not tell the truth on oath when giving evidence on 27 November 2008."

The Appeal

20. It is necessary now to explain how the matter comes before the Appeal Tribunal today.
21. The Employment Judge issued an order dated 9 December 2008 declaring with brief reasons that the claim had automatically been struck out on 4 December 2008. Mr Opara's solicitors took two steps in consequence of the letter. First, they applied for a review. This was the correct course. Secondly, they issued a notice of appeal against the decision in the letter dated 9 December.
22. In such circumstances it is very common for the Appeal Tribunal to stay the appeal pending the Tribunal's consideration of an application for review. If the application is successful, there will be no need for the appeal. Even if it is unsuccessful the Tribunal's further reasons may persuade an appellant that an appeal is not worthwhile. By order dated 3 March 2009 the Appeal Tribunal stayed the appeal pending determination of the review.
23. After the review was determined the Appeal Tribunal gave a further direction, dated 12 June 2009, requiring the Tribunal to provide its reasons and directing Mr Opara to lodge draft amended grounds "in the light of these reasons". Mr Opara lodged amended grounds. By order dated 27 August the Appeal Tribunal set the appeal down for a preliminary hearing. The preliminary hearing took place before the President and members on 3 November 2009. Two features of the preliminary hearing should be noted.
24. Firstly, the Order left open the possibility that if the appeal were allowed at the full hearing the Tribunal might itself at the request of the parties determine whether to grant relief against sanctions and gave directions to take account of this possibility. The Appeal Tribunal is indeed invited today by Mr Opara in the event that the appeal is successful, itself to consider whether to grant relief against sanction.
25. Secondly the Appeal Tribunal said:

"The Appeal Tribunal when directing a full hearing made brief observations. So that the substance of these observations is available to the Respondent, they may be summarised as follows, but without in any way binding the Tribunal at the full hearing. The central issue in the Employment Tribunal's reasoning was its finding that the non-disclosure of the second account was intentional. It seemed to the Appeal Tribunal arguable that the Tribunal ought not to have made so serious a finding implicitly rejecting the explanation given at para 7 of the "Claimant's comments" without (a) a hearing at which the Appellant gave evidence and was liable to cross examination and/or (b) giving fuller reasons than were in fact given"

26. This leads to one further feature of the appeal which we must mention. The focus of the Appeal Tribunal, in its successive interlocutory orders since June and in the comments made at the preliminary hearing, has been on the validity of the decision dated 1 May refusing relief against sanction. The focus of the parties, in submissions for both the preliminary hearing and this full hearing, has similarly been on the decision dated 1 May. At present, however, the appeal is against the order dated 9 December 2008, the correctness of which is not really challenged, rather than the order dated 1 May. We pointed this matter out to the parties. Without objection from the parties, we have treated the appeal as an appeal against the order dated 1 May, granting an extension of time for those purposes and treating the grounds and skeleton arguments as dealing also with an appeal against the order dated 1 May.

Submissions

27. On behalf of Mr Opara, Mr Esprit accepted in principle that the Tribunal was entitled to take into account, when deciding whether to grant relief against the sanction of striking out, whether and in what circumstances Mr Opara had failed to disclose the savings account.
28. He submitted, however, that the Tribunal had adopted a procedure which was neither fair nor appropriate under the Rules. It was unfair, because it involved making a finding of great significance and importance without any hearing. It was irregular, because the Tribunal was conducting a review without a hearing. We went, in the course of his submissions, to rules 34-36 and rule 14 of the Employment Tribunal Rules 2004.
29. Further, he submitted that the Tribunal's reasons for its central finding were inadequate. No consideration was given to the explanation which Mr Opara put forward relating to the savings account. No consideration was given to the savings account itself; the only payments into it were from the current account which had been disclosed.
30. Further, he submitted that the Tribunal did not deal adequately with Mr Opara's denial that he had said on oath that he only had one account. The Tribunal's notes, now called for, did not record such evidence.
31. On behalf of PIC Mr Thomas submitted that the Tribunal, on 1 May, was reaching a preliminary conclusion pursuant to rule 35(3), not holding a review pursuant to rule 36. There was no requirement for a hearing at the rule 35(3) stage. At that stage an application for a review could be dismissed on the basis that there is no reasonable prospect of a decision being revoked. If on paper a party is unable to satisfy a Tribunal that there are reasonable prospects of a decision being revoked, there is no obligation to hold a hearing so that a party can improve on the evidence submitted on paper.
32. Further and in any event, he submitted that there were substantial grounds on which the Tribunal could reach the view that Mr Opara had been deliberately untruthful. He took us through some of the features which he said were unsatisfactory about Mr Opara's evidence and conduct.
33. In particular, he took us to the detail of what happened on 27 November. He pointed out that, after the unless order was made, Mr Opara gave evidence on the question of his means. He submitted – although he was not able to take us to any specific answer in these terms in the notes of the Judge or even in his own notes - that Mr Opara was asked and indeed did tell the Tribunal that he had no other account. He also submitted (and there is support for this in the notes) that it was said on his behalf by his advocate that he was not in a position to pay a costs order immediately - whereas, in fact, he had more than £4,000 immediately at his disposal.
34. He submitted that the reasons given by the Tribunal were couched in terms of rule 3.9 of the Civil Procedure Rules, and were more than sufficient to tell Mr Opara why he had lost his application.

The Tribunal's Procedure

35. It is convenient to begin our conclusions by considering the procedure which the Tribunal adopted. This is governed by the Employment Tribunal Rules 2004 ("the 2004 Rules") (Schedule 1 to the Employment Tribunals (Constitution and Rules etc) Regs 2004).
36. It is well established that a Tribunal has the power to review an unless order pursuant to rules 34-36 of the 2004 Rules and to grant relief against the sanction contained in it.: see the judgment of the Appeal Tribunal in Neary v The Governing Body of St Albans Girls School and anr [2009] UKEAT/0281/08 at paragraphs 18-24, especially paragraph 24 (Judge Clark):

"It is open to a party to apply for a review. That application will be first considered by a Judge on paper (Rule 35(3)). If he considers that there are no grounds for the [strike-out] to be reviewed under Rule 34(3) or there is no reasonable prospect of the strike-out being varied or revoked he will dismiss the application. That is effectively what happened in this case by Judge Mahoney's review order. Alternatively, the matter will proceed to a review hearing under Rule 36. The question, both at the initial paper application stage and later at the review hearing focuses on whether the party in default ought to be granted relief from sanction ..."

37. The judgment in Neary was appealed: see Governing Body of St Albans Girls School and anr [2009] EWCA Civ 1190. Although it does not seem that there was any argument on this point the appeal proceeded on the basis that rules 34-36 applied: see Smith LJ at paragraphs 48-49.
38. Rule 35(3) provides for initial consideration by the Employment Judge. It expressly provides that this initial consideration is "without the need to hold a hearing".

"35 Preliminary consideration of application for review

(3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the Employment Judge of the tribunal which made the decision or, if that is not practicable, by-

(a) a Regional Employment Judge or the Vice President;

(b) any chairman nominated by a Regional Employment Judge or the Vice President; or

(c) the President;

and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked."

39. Rule 36(1) then provides for the review itself. The review itself is to be undertaken if practicable by the Tribunal or Employment Judge who took the decision Rule 36(1) provides –

"36 The review

(1) When a party has applied for a review and the application has not been refused after the preliminary consideration above, the decision shall be reviewed by the Employment Judge or tribunal who made the original decision. If that is not practicable a different Employment Judge or tribunal (as the case may be) shall be appointed by a Regional Employment Judge, the Vice President or the President."

40. In rule 36(1) there is no equivalent to the words "without the need to hold a hearing" in rule 35(3). To the contrary, rule 14(1) of the 2004 Rules expressly identifies a review hearing under rule 36 as one type of hearing which a Tribunal may hold. Rule 14(4) sets out the contents of a letter to be sent to the parties, informing them that they may make written submissions before the hearing and oral submissions at the hearing.
41. In our judgment the meaning and intention of the Rules is that a review pursuant to rule 36(1) – in contrast to the Employment Judge's initial consideration under rule 35(3) - will be undertaken at a hearing convened in accordance with rule 14, notice being given in accordance with rule 14(4). Of course, the scope of the hearing will depend on the subject matter of the review. If the issue at stake in the review is minor, the parties may content themselves with written submissions: see rule 14(5)-(6). They may even agree the result, in which case of course an order may be made under rule 28(2) and a hearing will be unnecessary. But where there is a fully contested application for a review under rule 36, the Tribunal should not dispense with a hearing.
42. We do not accept the submission of Mr Thomas that, on 1 May, the Employment Tribunal was exercising powers under rule 35(3). In this case (unlike Neary) the Employment Judge did not dismiss the application himself. He convened the Tribunal: a course which he would not have taken if he had reached the opinion that there were no reasonable prospects of success in a review. The Tribunal's reasons are not directed to the question whether there were reasonable prospects of success in a review; they were directed to the substantive question of relief against sanctions.
43. Although the Employment Tribunal's judgment does not refer to rule 36, it adverts to Neary, and we think the Tribunal must have been acting under rule 36. This being so, the Tribunal ought not to have dispensed with a hearing. That the Tribunal dispensed with a hearing is plain. No letter was sent complying with rule 14(4); the parties were in effect told not to attend on 1 May; and the Tribunal met in chambers.
44. Quite apart from the position under the Rules, it is in our judgment plain that the Tribunal ought to have convened a hearing in a case such as this in order to do justice between the parties. The Tribunal was being invited to make – as it eventually made – a finding tantamount to or at the very least akin to dishonesty on the part of Mr Opara. Even if Mr Opara had not been a professional man the finding would have been of the utmost seriousness. No Tribunal should make a finding of this kind without affording to the person against whom it is to be made a full and proper opportunity to be heard upon it.

Relief Against Sanction

45. There are no express provisions in the Employment Tribunal Rules governing the approach of the Employment Tribunal to an application for relief from a sanction, such as the operation of an unless order – except, of course, that the application for a review to be relieved from the consequences of a sanction will generally be made on the ground that the interests of justice require a review (rule 34(3)(e)) and the overriding objective will be engaged (reg 3 of the Employment Tribunals (Constitution and Rules) Regulations 2004).
46. In civil procedure, however, CPR rule 3.9 is applicable. It is headed 'Relief from Sanctions'. It provides:

"(1) On an application for relief from any sanction imposed for a failure to comply with any rules, practice direction or court order the court will consider all the circumstances including –

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party;

(2) An application for relief must be supported by evidence."

47. In the Employment Tribunal, where there is no express provision akin to rule 3.9, the correct approach has been the subject of recent authority - Governing Body of St Albans Girls School and anr. In that case an Employment Judge disposed of an application for relief against sanctions in a terse four sentences. The Court of Appeal, while commenting that his reasoning might have been fuller, held that he had committed no error of law in disposing of what was in effect a hopeless application. Smith LJ said (paragraphs 51-52).

"51. In the High Court and County Court, when a judge is considering relief from a sanction, he is under a positive duty to consider all the factors set out in CPR 3.9(1) as well as any others which appear to him to be relevant. Although Brooke LJ has called for a highly structured and explicit consideration of such factors, it seems to be accepted that a decision will not be defective if the judge fails to mention a factor which, on consideration on appeal, can be seen to have been irrelevant. But the judge is required to mention all those factors which he regards as relevant and which he has taken into account. If there is a conflict of evidence in relation to any factor, he will have to make clear findings of fact. He will have to show that he has taken the proportionality of the sanction into account.

52. I do not consider that the same detailed requirements are to be expected of an employment judge considering an application for a review of a sanction. Of course, the judge must consider all the relevant factors and must avoid considering any irrelevant ones. He might well find the list in CPR 3.9(1) to be a helpful checklist, although he would be well advised to remember that, in the instant case, that list might not cover everything relevant. But he is not under any duty expressly to set out his views on every one of those factors. His decision must comply with the basic requirements as set out in English v Emery Reimbold & Strick [2002] EWCA Civ 605. Litigants are entitled to know why they have won or lost and appellate courts must be able to see whether or not the judge has erred. In a case of this kind, it seems to me that the basic requirements are that the judge must make clear the facts that he has regarded as relevant. He must say enough for the reason for his decision to be understood by a person who knows the background. In a case where the draconian sanction of strike-out has been imposed, it will be necessary for the judge to demonstrate that he has weighed the factors affecting proportionality and reached a tenable decision about it. That does not mean that he must use any particular form of words. Any requirement for a particular form of words leads readily to the adoption of them as a mantra. But it must be possible to see that the judge has asked himself whether in the circumstances the sanction had been just."

48. The degree of reasoning required will depend on the subject matter. Where, as in Neary, the application is hopeless and is being disposed of under rule 35(3), the reasoning may indeed be short. Where, as in this case, the Tribunal is determining a fully contested application under rule 36 which has by definition a reasonable prospect of success, fuller balancing of the relevant factors will usually be required. We think that, while Tribunals are not required to be formulaic in their reasoning, they will continue to derive great assistance from a consideration of the factors in CPR rule 3.9.
49. We consider that the Tribunal's reasoning for concluding that Mr Opara had deliberately not disclosed all relevant documents knowing full well that they should be disclosed is inadequate reasoning for a disputed finding of such a serious nature.
50. Firstly, the Tribunal did not give any consideration to the explanation which Mr Opara put forward relating to the savings account. We do not think that his explanation can be rejected as inherently incredible. The existence of the savings account was plain from the statements of the current account which Mr Opara brought to the hearing. It would be surprising if Mr Opara intended to conceal the savings account when he was intending to disclose the statements of the current account. If the Tribunal rejected his explanation it ought to have said why.
51. Secondly, the Tribunal did not give consideration to the savings account itself; the only external source of income to that account was indeed the current account which had been disclosed. While we appreciate the point that the existence of capital was relevant to the costs order which the Tribunal made on 27 November, the issue which Mr Opara came to the Tribunal to address on that day was whether he had any other source of income. Again, the Tribunal's reasoning does not deal adequately with the basis of a serious finding.

Outcome

52. In these circumstances, the appeal must be allowed. It is impossible to say that the Tribunal would have reached the same decision if it had held a hearing; and the reasoning of the Tribunal is in any event inadequate.
53. The Appeal Tribunal at its preliminary hearing had invited the parties to consider whether, exercising powers under section 35 of the Employment Tribunals Act 1996, this Tribunal might itself decide whether relief against sanction should be granted, in effect holding a rule 36 hearing itself today. Mr Opara was content with this course. PIC was not. On behalf of PIC it was submitted that there would be substantial cross examination; and that the Appeal Tribunal ought not to decide substantial questions of fact in these circumstances.
54. We do not think this is the place to consider the precise ambit of section 35 of the Employment Tribunals Act 1996. We are content to assume that the Appeal Tribunal can, in appropriate circumstances, if it is in accordance with the overriding objective, and particularly if the parties agree or do not oppose the course, itself exercise a discretion in an interlocutory matter which a Tribunal has wrongly exercised. But in this case PIC wishes to raise a substantial question of fact and to invite the question of relief against sanction to be decided against the backdrop of that, hotly disputed, finding. We do not think that in this case it is an appropriate course for the Appeal Tribunal to hold its own hearing into the question whether relief against sanctions should be granted. The matter must be remitted. In view of the strong adverse finding made by the Tribunal without a hearing, it will be remitted to a fresh Tribunal.
55. We say the following only by way of general assistance to the fresh Tribunal – which of course starts afresh, not in any way bound by any view or finding made by Tribunal in the reasons for its decision on 1 May 2009.
56. To our mind, when a Tribunal is considering whether to grant relief against a sanction, the main focus will be on the default itself - (1) the magnitude of the default (2) the explanation for the default (3) the consequences of the default for the parties and the proceedings (4) the consequences of imposing the sanction on the parties and the proceedings; and (5) the promptness of the application to remedy the default. These are the principal factors the Tribunal will have in mind when it considers the interests of the administration of justice, and above all whether it is unjust and disproportionate to impose the sanction. The default in this case was the failure to provide some statements of the current account within the time limit provided by the order.
57. Although the Tribunal may make findings about collateral matters, such as whether there have been other breaches of orders or other procedural defaults, it is not bound to do so. Again by way of analogy, the use of the phrase "all the circumstances" in CPR rule 3.9 does not mean that a party can require the court to make findings about matters which are controversial and which are not directly related to the default. The sanction will have been imposed to deal with a specific default or potential default; if it is not fair or proportionate to impose the sanction for the default itself, a Tribunal should beware of the submission that it just to do so by reason of some other alleged default.
58. Courts and Tribunals are entitled to set boundaries to the matters which they will take into account when granting relief against sanctions. Where previous breaches of order have been plainly established or are incontrovertible a Tribunal will no doubt readily take them into account; but a Tribunal is entitled to make its decision on a question such as relief against a sanction without making findings of facts on collateral matters which are heavily contested.
59. We mention this particularly because, on the papers before us, there was a substantial contest as to whether Mr Opara said on oath on 27 November that he had no other account. The Tribunal may well be able to find safe resting ground for a decision on the question of relief against sanctions without determining this precise issue. Certain facts about this account are clear; it was mentioned in the current account statements which Mr Opara brought to the hearing on 27 November; it was not specifically mentioned on 27 November; the statements were disclosed as soon as PIC's solicitors asked for them, prior to 4 December.
60. We record, finally, two other matters. Firstly, the notes of the Employment Judge and the notes of counsel shown to us did not provide direct support for the proposition that Mr Opara said on oath on 27 November that he had no other account.
61. Secondly, there are references in the Tribunal's reasons to the Mr Opara being "in default of the protocol requiring full disclosure of relevant documentation". No such protocol exists. Before Employment Tribunals there is no general duty, as in civil procedure, to provide disclosure; rather there is a case management power to order disclosure. In this particular case there was, as counsel for Mr Opara accepts, an expectation that Mr Opara would disclose (inter alia) bank statements relating to his sources of income; but as regards the savings account there was no breach of any order or protocol.
62. The appeal will be allowed; and the matter remitted to a freshly constituted Tribunal to determine the question of relief against sanctions.