Appeal No. UKEAT/0037/12/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
11 June 2012
Before
HIS HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)
MR
B PATEL APPELLANT
BABCOCK
AIRPORTS LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Review
On 27 June 2011 the Tribunal prepared a letter informing the
Claimant that Employment Judge Hill was considering striking out the claim
because he had not complied with the order dated 16 May. The letter said that
if he wished to object to the proposal he should give his reasons in writing by
5 July 2011. He did not do so; his claim was struck out. He applied for a
review, stating that he had not received the letter dated 27 June 2011. The Employment
Judge said that she “did not accept the Claimant was telling the truth” because
the letter had been sent by email to the usual address. She refused the
application for review peremptorily under rule 35(3). Held: she was not
entitled to reach the conclusion that the Claimant was not telling the truth
without further enquiry.
HIS
HONOUR JUDGE DAVID RICHARDSON
1.
This is an appeal by Mr Baku Patel (“the
Claimant”) against a decision of Employment Judge Hill dated 20 July 2011. By
her decision she refused to review a judgment dated 11 July 2011 striking out
the claim for unfair dismissal which he had brought against Babcock Airports
Limited (“the Respondent”).
The background
2.
The Claimant was employed by the
Respondent from 31 March 2008 until 6 December 2010. He was summarily
dismissed on the grounds that, while signed off sick and receiving sick pay, he
carried out work in his own business. He commenced proceedings for unfair
dismissal on 2 March 2011. He says that the Respondent had always known (from
his CV and his job interview) that he had his own photography business; all he
did was attend two weddings, once as a guest and once with a colleague who did
the photography and video; what he did was neither dishonest nor a breach of
contract; and he was not given a fair hearing. I emphasise that the merits of
his claim for unfair dismissal have not been tested, for reasons to which I
shall now come.
3.
On 28 April 2011 at a pre-hearing review directions were given to
prepare for a hearing, listed to take place on 22-23 August 2011. Disclosure
was ordered to take place by 19 May 2011. The directions order was typed up by
the Tribunal and sent out bearing the date 16 May 2011.
4.
On 16 June 2011 the Respondent’s representatives wrote to the Tribunal
saying that it had sent its list of documents to the Claimant on 23 May, but he
had not provided his list, despite a reminder.
5.
On 27 June 2011 the Tribunal prepared a letter informing the Claimant
that Employment Judge Hill was considering striking out the claim because he
had not complied with the order dated 16 May. The letter said that if he
wished to object to the proposal he should give his reasons in writing by 5
July 2011. The letter bears the address “Mr B Patel BY EMAIL”. In his ET1 claim
form the Claimant had given an email address and stated that this was his
preferred method of communication.
6.
The Tribunal heard nothing from the Claimant. On 11 July 2011 the
Employment Judge struck the claim out.
7.
On 15 July 2011 solicitors for the Claimant
wrote to the Tribunal in the following terms.
“We write to ask for a review of the Judgement which was
promulgated on 11 July 2011 by Employment Judge Hill.
The reason for the review [is] that the Judgement refers to a
letter that was sent by the Tribunal on 27 June 2011 giving “the Claimant an
opportunity to give written reasons [why] the claim should not be struck out”.
We are informed by our client that he never received this letter and therefore,
was unable to comply with the contents thereof.”
8.
The Employment Judge dealt with the
matter peremptorily. By letter dated 20 July the Tribunal replied on her
behalf:
“Your application for a review has been refused because the
Judge considers that there are no grounds for the decision to be reviewed under
Rule 34(3) and/or there is no reasonable prospect of the decision being varied
or revoked.
Reasons:- The Claimant has told his Representative he did not
get the warning letter. As it was sent by email to his correct email address
at which the Claimant has received all other Tribunal documentation I do not
accept the Claimant is telling the truth. He had responded to earlier
correspondence sent via email and therefore it is clearly the correct email
address.”
9.
The Appeal Tribunal invited the
Employment Judge to amplify her reasons; in response she confirmed that the
reasons were sufficiently stated.
Statutory provisions
10.
The power to strike out a claim for
non-compliance with an order is contained in rule 18(7) of the Employment
Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunal
(Constitution and Rules of Procedure) Regulations 2004). In most
circumstances notice must first be given under rule 19(1) informing the affected party of the order or judgment to be considered
and giving him the opportunity to give reasons why the order or judgment should
not be made. Such a notice may be sent by means of electronic communication:
rule 61(1). It is taken to be received on the day of transmission unless the
contrary is proved: rule 61(2)(b).
11.
A judgment striking out a claim may be
reviewed under rule 34 of the Employment Tribunal Rules of Procedure. The
grounds for review are set out in rule 34. I need not set them out in this
judgment.
12.
Rules 35 and 36 deal with the procedure
to be followed where there is an application for a review. The application
must be made within 14 days (rule 35(1)). It will be considered first, without
the need for a hearing, under rule 35(3); it will be refused if the Employment
Judge considers (rule 35(3)):
“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.”
If the application is not filtered
out under rule 35(3) a review is held in accordance with rule 36, upon which
the decision may be confirmed varied or revoked.
The appeal
13.
The Claimant’s Notice of Appeal was
prepared by counsel. I can summarise the grounds as follows. Firstly, it is
argued that the Employment Judge has not considered the reason put forward by
the Claimant properly: she has concluded that he was dishonest without giving
him any opportunity to put forward evidence or argument in support of his
contention. It is said that he had previously not received emails from the
Tribunal, that ACAS had notified the Tribunal that he did not receive
notification of the pre-hearing review, and that the Tribunal had had to
re-send notice of the pre-hearing review. Secondly, it is argued that the
Tribunal did not consider at all the proportionality of striking out, bearing
in mind that the application to revoke the order was made very promptly. A
broad assessment of the interests of justice was required: see Thind v
Salvesen Logistics Limited [2010] UKEAT/0487/09/DA at paragraph 14.
14.
Today the Claimant has appeared in
person. He has relied on the grounds set out in his Notice of Appeal. He
also produced a skeleton argument, but this was directed to the merits rather
than to the questions I have to decide. In addressing me he mentioned the
possibility that an email from the Tribunal might have been diverted
automatically by his computer into a box for junk mail; but he confirmed that
he did not himself receive and read the Tribunal’s letter dated 27 June.
15.
On behalf of the Respondent Mr Martin
Palmer submits that the Employment Judge was entitled to deal with the matter
summarily. He says it was for the Claimant to prove that the email had not
been received (see rule 61(2)(b) and T and D Transport (Portsmouth) Ltd v
Limburn [1987] ICR 696); the Claimant’s solicitors did not provide any
evidence to prove whether the email had been received; in the absence of such
evidence the Employment Judge was entitled to conclude that the Claimant had
deliberately chosen not to respond to the striking out warning.
Conclusions
16.
I have concluded that the Employment
Judge’s decision on 20 July 2011 cannot stand. My reasons are as follows.
17.
Rule 35(3) of the Employment Tribunal Rules of Procedure provides for
preliminary consideration of applications for review. Many such applications
can properly and fairly be dealt with summarily on paper: the paradigm case is
an application for review following a full hearing, where the application does
no more than challenge the findings and reasons given. Occasionally, however,
such an application will be predicated upon an important issue of fact. This
was such a case: the Claimant was saying that he did not receive the Tribunal’s
letter dated 27 June 2011. Rule 35(3) is not the appropriate mechanism for
deciding issues of fact.
18.
The Employment Judge did not make her decision on 20 July on the basis
that the Claimant’s solicitors had failed to provide evidence of non-receipt of
the letter. The solicitor’s letter set out a negative; the only direct
evidence of non-receipt could come from the Claimant; but his assertion of
non-receipt, if accepted, would be evidence which could discharge the burden of
proof.
19.
Rather, the Employment Judge made her decision on the basis that, since
the letter was sent by email to the usual address, and previous emails had been
received, the Claimant was not telling the truth. But whether the Claimant
was, or was not, telling the truth could not be established fairly without some
enquiry. Even if it is to be assumed that the Tribunal sent the email on 27 June
with the correct attachment to the correct address and received no error
message in return (and, the Employment Judge not having amplified her reasons,
it is unclear what enquiry she made about this), it does not necessarily follow
that it was received, still less read: there may have been a fault in
transmission, or with the Claimant’s mail provider, or even with his computer
or the systems on his computer. Put shortly, the Claimant’s application could
not be satisfactorily resolved under rule 35(3) on the material before the
Employment Judge. She was not entitled, without further enquiry, to make a
finding that he was not telling the truth.
20.
It follows that this appeal must be allowed and the matter remitted. I
will direct that a review take place. It is now plainly undesirable that it
should take place before the same Employment Judge, since she has expressed the
view that the Claimant is not telling the truth.
21.
I would expect that the Tribunal itself would check its email system to
ensure the correct attachment was sent to the correct address, and to see if
there is any indication of emails not arriving or being re-sent, and would
provide details to the parties.
22.
I will direct that the Claimant file and serve at the Tribunal, by 21
days from the seal date of this order, a signed statement confirming, if it be
the case, that he did not receive the letter dated 27 June, and setting out any
other evidence he wishes to rely on in support of his application – for example
if he is saying he did not get earlier emails and that they had to be re-sent,
he should give details.
23.
Upon review, the first question will be
whether the email was received by the Claimant. If it was not received his
application for a review would be very strong. If it was received, but for
some reason not read or acted on, his application was not be so strong; but the
Tribunal should still keep in mind the guidance given in Thind v Salvesen
Logistics Limited at paragraph 14:
“… The tribunal must decide whether it is right, in the interests
of justice and the overriding objective, to grant relief to the party in
default notwithstanding the breach of the unless order. That involves a broad
assessment of what is in the interests of justice, and the factors which may be
material to that assessment will vary considerably according to the
circumstances of the case and cannot be neatly categorised. They will generally
include, but may not be limited to, the reason for the default, and in
particular whether it is deliberate; the seriousness of the default; the
prejudice to the other party; and whether a fair trial remains possible. The
fact that an unless order has been made, which of course puts the party in
question squarely on notice of the importance of complying with the order and
the consequences if he does not do so, will always be an important
consideration. Unless orders are an important part of the tribunal's procedural
armoury (albeit one not to be used lightly), and they must be taken very
seriously; their effectiveness will be undermined if tribunals are too ready to
set them aside. But that is nevertheless no more than one consideration. No one
factor is necessarily determinative of the course which the tribunal should
take. Each case will depend on its own facts.”
This case does not involve breach
of an unless order; rather it involves breach of an order coupled with a
failure to explain the breach when given an opportunity to do so. Nevertheless
the striking out order was imposed for default in compliance with an earlier
order; and broadly similar considerations apply.
