Appeal No. UKEAT/0521/11/CEA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
20 January 2012
Before
THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)
MS
L RICHARDSON APPELLANT
CANTERBURY COLLEGE RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
A letter from the Employment Tribunal was capable of
misinterpretation: it might (as the author intended) have ruled adversely to
the Claimant as to waiving a deposit she had been ordered to pay, but it might
not (as the Claimant appeared in contemporaneous correspondence to understand
it). When an Employment Judge struck out the claim for non-payment of the
deposit he did so without apparent consideration of the contemporaneously
expressed view of the Claimant, and ought to have taken into account her
understanding of the position before ruling against a review of the strike
out. Case remitted.
THE HONOURABLE MR
JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.
This is an appeal that seeks to appeal a refusal by a Judge to review a
Judgment.
Background
2.
The background is this. The Claimant was dismissed from her employment
as a lecturer at Canterbury College. That was for the allegation that she had
deliberately forged a signature on a document. She raised a number of matters
in her application to the Employment Tribunal, some of which suggested that her
actions had been misinterpreted or might have been the consequence of a
disability from which she suffered. Those matters were considered at a Pre‑Hearing
Review on 24 March 2011. The Judge at that review ordered that the
Claimant pay a deposit of £200 in order to continue with the proceedings in
accordance with rule 20 of the Employment Tribunal Rules. He
acknowledged that that sum was for her in her state a substantial sum of money,
but he concluded that it was within her means should she be sufficiently
determined to continue with the claim. The deposit was to be paid by
4 May 2011.
3.
Pausing there, the obligation plainly was on the Claimant to pay the sum
if she wanted to continue. That point was emphasised by the notes that
accompanied the order. They provided for the possibility that the period of
time might be extended by up to 14 days, provided that an application seeking
such an indulgence was made within the period of three weeks following receipt
of the order. It then went on to say, again in clear terms: “If the deposit is
not paid within the extended period of time, an Employment Judge shall strike
out the claim […]”. In response to that, the Claimant made two applications to
the Tribunal. The first, six days after receipt of the order, asked the
Tribunal to consider allowing her as long a period as possible to pay the
deposit; perhaps, she suggested, until September, because of the outstanding
financial commitments she had to meet over the next few months. The second
application, four days later, said this: “Further to my email of
19 April 2011 could you please kindly consider waiving your deposit
fee of £200”.
4.
The Employment Judge in refusing the request for a review set out all
that history accurately. The applications that had been made on
19 and 23 April were the subject of a letter to the Claimant of
27 April. This letter read as follows:
“I refer to your letters dated 19th and 23rd
April 2011, which have been placed on the file.
Employment Judge Wallis has directed me to write to you.
Please explain to the Claimant that the Deposit Order cannot be
extended in the way she proposes.”
5.
It is signed on behalf of the Secretary of Employment Tribunals. The
Employment Judge took the view that that letter informed the Claimant that both
applications had been refused. It appears that it was on that basis, and the
implication arising from that view that the Claimant understood that the
applications had been refused or ought reasonably in the circumstances to have
done so, that the review decision continued. What happened was that the 21‑day
period for payment expired on 4 May 2011. The deposit was never
paid, and the claim was struck out on 12 May. The Claimant appealed
against the requirement of £200 payment but did so out of time, and her appeal
was rejected in this Tribunal. She sought a review, within time, saying to the
Employment Judge as follows:
“At the time of the Strike Out decision I had an application
pending a decision. I had requested an extension to the time limit regarding
payment of the Deposit. I then requested that the Court waiver [sic] the £200
Deposit on the grounds of increasing and unexpected hardship.
Having been told that the request for an extension had been
denied, I then made consistent efforts to ascertain a decision as to whether
the Court had waived the Deposit fee.
I had not been informed of the outcome of that request when the
decision to apply for a Strike Out was made. When I was told by telephone that
this was the case, I offered to pay the £200 Deposit immediately, but this was
refused. […]
In the interest of justice I ask that the decision to Strike Out
my claim be reviewed to allow me to pay the Deposit, should this be necessary,
and to continue my claim please.”
6.
The Judge dealt with that application in the light of the history as he
had recited it by saying this, in paragraphs 11 and 12 of his
Judgment:
“11. The notes accompanying the deposit order were clear.
Unless the deposit was paid within 21 days, or an extension of time had been
granted, the claim would be struck out. The Claimant was aware before the
expiry of the 21 days that her request for an extension of time had been
refused.
12. I have concluded that there was no administrative error and
no breach of justice in these circumstances.”
7.
It is axiomatic that the decision whether to grant a review or not is a
discretion that the Employment Judge is at liberty to exercise, and that
appellate courts should not interfere with the exercise of any such discretion
unless the approach to it is wrong in law or unless the Judge, in coming to the
conclusion he did, has left out of account something that ought to have been
taken into account, or, conversely, taken into account something that he should
not have done. Here, the argument for the Claimant is encapsulated by
Mr Recorder Luba QC on the sift, granting permission for this
case to be heard, when he wrote:
“Before the specified date the Appellant made two separate
applications: (a) for more time to pay and (b) for waiver of the fee. The
response was ‘explain to the Claimant that the deposit order cannot be extended
in the way she proposes’. The Appellant treated that as a response to her
first application and was still waiting for a response to the second
application when time expired and a strike-out took effect. On review the
Employment Judge appears to have held that the response covered both applications!”
The appeal
8.
Before me it is accepted that it would be a relevant consideration for
the Judge to take into account that the Claimant did not understand that her
request for a waiver had been rejected. There would have to be a credible
basis before the Employment Judge if he were to reach any such conclusion. It
must be assumed that he had in front of him the Employment Tribunal file, not
least because he makes reference to some of the correspondence in his
decision. Part of that file includes an email sent on 4 May, the last
date for payment of the deposit, in which the Claimant said that she had requested
a waiving of her £200 fee, which was due in “now”: “Please could you kindly
advise me as to your decision? I look forward to hearing from you.” On
9 May she emailed again, asking whether there was an answer yet to her
appeal against the £200 deposit.
9.
It was thus, or should have been, plain that she was asserting at the
time that she had not understood the letter of 27 April as having disposed
of that claim. The letter of 27 April 2011 is arguably unclear,
although in context it must be noted: first, that there was an order for
payment by 4 May; secondly, that order had never been revoked, nor had the
Claimant been told that it was; and thirdly, that for a letter to deal with the
refusal of an extension may be said to imply that the order remains in force.
The letter itself referred to both applications, that to extend time and that
to waive a fee, and so it is open to the conclusion that it would not have been
reasonable for the Claimant to have interpreted the letter as giving any
glimmer of hope to her, but it must also be appreciated that the letter might
arguably be capable of the interpretation that the Claimant appears to have
given it. Whether she was entitled to do so reasonably would be an assessment
to be made in the light of the considerations I have mentioned, the context as
a whole, and the fact, which is not irrelevant, that she had been a lecturer,
teaching, she tells me, psychology and health and social care, and has, for
that purpose, a degree in psychology. She might, therefore, if a Judge wished
to come to this conclusion, be thought of as a person who, though not competent
in law, is nonetheless capable of understanding some complex documents.
10.
The difficulty, however, is that the implication in the Judge’s decision
is that the Claimant fully understood that the deposit had to be paid. There
is no indication in his decision that he appreciated that she took, or appeared
to take, a different view, and that there was credible material to support it.
The decision to refuse her claim that the interests of justice required a view
demanded, in my view, that he should have explored not simply whether she had
been told, as he saw it, but whether she understood and whether, if she failed
to understand and if she satisfied him of that, her failure was reasonable in
the circumstances. Plainly if an order is made, a litigant cannot normally be
heard to say that they do not understand the order if the terms of it are
perfectly clear and if it is unreasonable for them to understand it in the way
they suggest, but in this particular case, having taken all the matters into
account, it seems to me that it is at least open to the Judge to come to a
conclusion that might be favourable to the Claimant. I am satisfied that he
exercised his discretion without considering what was on the material before
him clear evidence that supported a case that she did not understand the
communications as refusing her application to waive the fee, and that there
might have been a proper basis for that understanding. Accordingly, he might,
had he appreciated that, have come to a different conclusion as to the
application for a review. Therefore I cannot say that the decision he reached
was plainly and obviously right. I am not in the position in this Tribunal to
exercise the powers of this Tribunal to substitute its own decision. I would
not wish to do so in this case, because the Claimant makes reference to matters
she says she was told by members of the Tribunal staff, and that, Ms Webb
submits, and I agree, may require some investigation or exploration if it is to
be dealt with properly.
Conclusion
11.
Despite, therefore, the careful way in which the Employment Judge dealt
with the application for a review, to which, but for the point I have
identified, I would pay tribute, this appeal has to be allowed, with the
consequence that the matter is to be remitted to the Tribunal for the Judge to
consider the question of whether to grant a review or not in the light of this
Judgment and any further representations that either party may seek to put
before him.
