SUMMARY
PRACTICE AND PROCEDURE – Appearance/response
Judge reviewing the rejection of a late-lodged ET3 (in accordance
with Moroak v Cromie [2005] ICR 1226 and D & H Travel
Ltd v Foster [2005] ICR 1537) failed to follow the approach in Kwik
Save Stores v Swain [1997] ICR 49, as prescribed in this context by Pendragon
Plc v Copus [2005] ICR 1671 – Applying the correct test, the ET3 should
have been admitted.
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
1.
There are before us two appeals. They have a complicated procedural
history, and it will be convenient to set this out first before identifying the
orders appealed against. We should say at the outset that the correspondence
and orders of the Employment Tribunal are littered with confusions and
misunderstandings, which have made it a good deal more difficult to identify
what exactly has happened procedurally. Nevertheless, the central points are
clear.
2.
The Appellant had a shoe shop in Wrexham, trading as Footloose, though
it has since closed. The Claimant had worked as an assistant there from 2000
to late 2003 and again from early 2004. Sadly, in June 2008 she was
diagnosed with non‑Hodgkin’s lymphoma. She was off work for eight months
while she received treatment. She returned to work in February 2009. It
is her case that she requested a reduction in hours by way of a reasonable
adjustment in the course of her convalescence, but that although that was
initially agreed to the Appellant refused a subsequent request for a further
reduction in hours, and she was in fact pressured to increase the hours that
she worked. In the event she resigned on 24 June 2009.
3.
On 5 August 2009 the Claimant presented a complaint in the
Employment Tribunal alleging unfair constructive dismissal and disability
discrimination by way of failure to make reasonable adjustments. The ET1 named
the Appellant correctly and gave his correct address, but, carelessly, in the
notice of the claim sent out by the Tribunal in accordance with rule 2 (2)
of the Employment Tribunal Rules of Procedure his
name was given as “Hornton” instead of Thornton. The notice was nevertheless
duly delivered to, and opened by, him. It informed him that a response was
required by 7 September 2009. Instead of complying with that
request, he says that he wrote to the tribunal office in Cardiff to point out
that his name had been got wrong. A copy of the letter that he says that he
wrote was produced to us, though it was not produced to the Tribunal. Without
prejudice as to any question as to its admissibility we will, for completeness,
set out its terms, which were as follows:
“Dear Sir,
In reply to your letter dated 10/08/09, I write to explain an
error in the name. Your letter is addressed to Mr Shane Hornton, of
which mine is Thornton please advise.”
We do not know whether that letter (assuming that it was indeed
sent) was received by the Tribunal. In any event the Appellant does not
suggest that he received any reply to it. It is his case that he thought that
he need do nothing until he received a reply.
4.
In circumstances where a respondent does not put in a response within
the time provided by rule 4, rule 9 operates so as, in effect, to
debar him from taking any further part in the proceedings. On
14 September 2009 the Appellant was sent a letter by the Tribunal to
that effect.
5.
On 30 September the Appellant spoke to someone in the tribunal
office in Cardiff. The next day he wrote to the Tribunal as follows:
“Dear Sir
In reply my phone conversation with Kate on the 30/09/09, I
write this letter to appeal for the right to defend myself at the tribunal. As
I explained to Kate, when the letter first arrived to my house, it was in the
name of Mr Hornton not Mr Thornton. After seeking advice I was
advised to write a letter to you explaining the error, of which I did. While
waiting for a reply, I receive the letter saying I have not responded, and
letter with a tribunal date. As I explained to Kate, I realize I should of
sent form back as well, and only wish I had. Kate explained if I sent the form
back right away there would be a possibility my right to defend myself, could
be reinstated. As I explained to Kate I hope my wish will be granted because
if not a big injustice will occur at the hearing if I can’t defend myself.”
He enclosed an ET3. The Grounds of Resistance are short, and
give no real detail beyond saying the claim is ill‑founded. Subsequently
the Appellant submitted a more fully pleaded response, saying that the first
had had to be put together in a hurry.
6.
On 13 October 2009 the Tribunal wrote to the Appellant saying
that his letter of 1 October had been treated “as an application for a
review”. The letter is unhelpful. Although it says that the decision to
review had been made by “the Judge”, the identity of the Judge in question is
not given, which is a breach of good practice. More to the point, it does not
identify the relevant rule or the decision which is to be “review[ed]”. The
Claimant protested at the decision to permit a review, but the Tribunal wrote
on 24 October confirming that “the Employment Judge has directed that the
matter is now listed for a Review Hearing,” saying that details would follow.
Again, the letter gives no information about the nature of the hearing or the
identity of the Judge.
7.
Subsequently the parties were sent a document headed “Notice of Pre‑Hearing
Review”, informing them that a PHR would occur in Abergele on
22 March 2010. That letter, too, was careless and unhelpful. It was
undated, and there was a sentence beginning “The matters to be clarified and,
if appropriate, decided at the PHR are…”, but what followed was a blank.
Whatever rule had in fact been relied on by the Judge who made the original
direction for a review, the intended hearing was plainly not a PHR under rule 18.
8.
Someone seems belatedly to have spotted the problem about the notice because
on 5 March 2010 an amended notice was sent out, for the same date,
referring simply to a “Review Hearing”; but there was still no identification
of what was being reviewed.
9.
It is the Appellant’s case, though this is not in the end central to the
basis on which we will decide the appeal, that that correspondence from the
Tribunal gave him no real indication of the nature of the hearing. He
understood that in fact the hearing would be a substantive hearing at which he
would have the opportunity to present his defence. To a lawyer, or even a well‑educated
layman, it should have been apparent that that was not the case; but certainly
it can be said that the Tribunal’s correspondence gave the parties very little
help as to the nature of the issue and what was to be decided.
10.
The hearing duly took place at Abergele before Employment
Judge Thomas on 22 March 2010. The Appellant appeared in person.
The Claimant was represented by a Mrs Karen Leach, who had been
named as her representative from the start: as we understand it, she is not a
lawyer. By a Judgment sent to the parties on 1 April, though no doubt recording
a decision announced at the hearing, the Judge decided that:
“The Application to Review the decision of
14 December 2009, to disentitle the Respondent to take any part in
the proceedings, is rejected.”
The reference to “the decision of 14 December 2009” is
puzzling. We are aware of no decision of that date. We can only explain it on
the basis that this was a typographical error for 14 September 2009,
being the date of the letter notifying the Appellant that he was not entitled
to defend the claim. That letter did not in fact represent a judicial
decision, but we return to that point in due course. We should also note that
in a further piece of carelessness the date of the hearing is given on the
Judgment as being 26 March rather than 22 March.
11.
It appears that the Appellant asked for written Reasons. These were
sent to the parties on 4 June. There is another puzzle here. In the
Tribunal’s eventual substantive Judgment, to which we will come shortly, the
review application is said to have been dismissed on 30 July. We cannot
see where that date comes from: as we have said, the hearing itself was on
22 March, the formal order was sent to the parties on 1 April and the
Reasons on 4 June. Fortunately nothing turns on this.
12.
A hearing of the Claimant’s substantive claim was fixed for
12 August 2010 at Shrewsbury. Notice of the hearing was given to
both parties, though of course following the rejection of his review
application the Appellant could effectively take no part by reason of the
operation of rule 9. It does not appear that he fully understood that
that was the case; but, whether he did or not, he was of course entitled to
attend as an observer. In the event the venue was changed to Abergele. The
Appellant says that he received no notice of that change, and the hearing
proceeded in his absence, he having gone to Shrewsbury rather than Abergele,
before a Tribunal chaired by Employment Judge Hoult. A Judgment with
Reasons was sent to the parties on 12 November 2010 - that is, some
five months later. There is yet another procedural puzzle about this. The
final paragraph of the Reasons says:
“11. This Judgment with Reasons was given at the request of the
Respondent and given that the Respondent was not present a copy of the
Claimant’s statement and the bundle of documents will be sent to the
Respondent.”
But that makes no sense. The question of the Respondent (that
is, the Appellant before us) requesting Reasons would only arise once there had
been a Judgment (see rule 30), and on the face of the record there was no
Judgment until 12 November. What we think must have happened is that an
oral Judgment was issued at the end of the hearing, but, irregularly, no
written record was made, as required by rule 29 (1), until several months
later.
13.
The decision of the Tribunal, whenever formally it was made, was that
the Appellant was liable for both unfair dismissal and disability
discrimination. Compensation was awarded in the sum of £9,419.45. The largest
part of that award consisted of compensation for loss of earnings for a period
of something over a year - that is, until August 2010.
14.
We should mention for completeness two other parts of the story, though
they are not in the end relevant to our decision. First, by letter dated
27 August (that is, in the long interval between the hearing on
12 August and the promulgation of the Judgment and Reasons) the Appellant
applied for a review of the decision that he understood to have been made on
12 August. By what is described as a Judgment and Reasons dated
5 November, on a preliminary consideration under rule 35, Judge Hoult
refused to direct a review. Secondly, following the substantive decision the
Appellant applied for a review of the Tribunal’s decision as regards
compensation. The application for a review was granted, but the review hearing
itself has been stayed.
15.
The appeals before us are (a) against the decision to refuse a review on
22 March and (b) against the substantive decision apparently made on
12 August, though not incorporated in a Judgment until 12 November. The
Appellant has been represented by Mrs Sarah Stanzel, appearing under
the auspices of the Bar Pro Bono Unit. The Claimant has elected not to appear
but relies on her previous written representations, which we have taken into
account.
16.
The Appellant has put together a bundle for the purpose of the appeal. It
is not, we are bound to say, as helpfully arranged as it could have been.
Mrs Leach, on behalf of the Claimant, has written to object to the
inclusion of certain documents in it. Some of these are documents recording
communications between the parties and ACAS: we have paid no attention to these
documents. Others are objected to on the basis that they were submitted out of
time, particularly the two versions of the ET3. The position as regards those
is of course different, and we are entitled to have regard to them for the
purpose of deciding the issues on this appeal.
17.
As regards the first of the two decisions appealed against, the Judge,
with respect, rather mis-stated the formal nature of the exercise that he was
undertaking. He was not, contrary to the terms of the Judgment, which are also
reproduced in the Reasons, reviewing any “decision to disentitle the Respondent
to take part in the proceedings”. There had been no such decision: rule 9
operates automatically (see D & H Travel Ltd v Foster
[2005] ICR 1537 at paragraph 14). The correct course for a respondent who
has not put in a response in time, and so has fallen foul of rule 9, is to
put in a response late, which will necessarily be rejected by the Tribunal; and
then to apply to review that rejection under rules 6 (6) and 34 (3)
(e) (see Moroak (t/a Blake Envelopes) v Cromie
[2005] ICR 1226). The Appellant has of course submitted a late ET3: indeed, as
we have explained (see para. 5 above), he has submitted two. We cannot see
that the first of those ET3s was ever explicitly rejected (unless, though we
think not, this was the decision of 14 December referred to in the Judge’s
order - see para. 11 above); but the decision in D & H
shows that this Tribunal should be astute to find an implied rejection even if
none is expressed. It seems to us clear that in practice what the Judge was
doing at the hearing of 22 March, although he failed to appreciate it, was
refusing to accept the late‑lodged ET3.
18.
However, that error on the part of the Judge in describing the nature of
his decision would not matter if in substance he had carried out the right
exercise. The correct approach in a case of this kind was prescribed by
Burton J in Pendragon Plc v Copus [2005] ICR 1671, which makes it clear that a Tribunal should apply the principles set out
in a slightly different context in Kwik Save Stores v Swain
[1997] ICR 49. We will not set out the guidance in Kwik Save
in extenso. It can be sufficiently summarised for present purposes as
follows. The Tribunal is entitled to exercise a broad general discretion in
the interests of justice: this is not, therefore, a case where restrictive
rules are applied, such as are applied in this Tribunal in extending time for
the lodging of a Notice of Appeal. The Respondent’s explanation for his
failure to lodge a response in time will always be relevant. If the failure
represents some kind of procedural abuse or intentional default, that will
obviously weigh heavily against the grant of an extension. Conversely, to use
Mummery J’s words at page 55, if the delay:
“[…] is the result of a genuine misunderstanding or an
accidental or understandable oversight, the Tribunal may be much more willing
to allow the late lodging of a response.”
The length of the delay is also always a relevant factor. But
Mummery J makes the point in Kwik Save that these are
not the only factors: it is always necessary also to consider the prejudice to
the parties if the extension is either granted or not granted. In this
connection, the merits of the respondent’s defence will always in principle be
relevant, because it is obviously a serious matter for a respondent to be held
liable, because of a procedural default, for a wrong that he may not in fact
have committed: see in particular the passage at page 55 F-H in Kwik Save.
19.
The Judge did not in his Reasons refer to any authority, and how he
directed himself can only be established by looking at his actual reasoning.
This can be summarised as follows.
20.
The Judge starts by saying, at paragraph 3:
“This application is not about the merit of the substantive
case, it is whether or not I should exercise the discretion within the rules to
allow the matter to proceed defended rather than undefended.
Rule 34(3)(e) requires me to consider ‘the interest of justice’, which
means justice for both sides.”
That is unexceptionable as far as it goes, though the observation
that the application is not about the merits of the substantive case is
dangerous if it means that the Judge disregarded the merits altogether.
21.
The Judge then proceeds to examine the reasons for the Appellant’s
failure to put his response in in time. He appears to have accepted that the
Appellant had written to the Tribunal to point out the error in his name: see
paragraph 6 of the Reasons. It is fair to say that the Judge used the
phrase “so he says”; but if he was going to reject the Appellant’s evidence he
would have had to make a firm finding to that effect. However, he took the
view, which we would certainly share, that the need to correct the error in his
name was not objectively a good reason for the Appellant not lodging the ET3 in
the meantime: indeed, as we have noted, the Appellant himself recognised that
in his letter of 1 October (see para. 5 above).
22.
The Judge then goes on to examine the reasons for the delay of
approximately a fortnight between the Appellant’s receipt of the letter of
14 September telling him that he was debarred from defending and his
telephone call to the Tribunal on 30 September followed by his letter the next
day. The Appellant apparently gave evidence that this delay was because he was
on holiday, but the Judge was unconvinced by that explanation and commented “I
conclude that the respondent simply ignored the rules and put his head in the sand”.
It may well be, if the Judge did not find any good reason for the 14‑day
delay in question, that he was entitled to make that comment in that connection;
but we are bound to say we could not regard it as a justified comment on the
total sequence of events as found by the Judge. On any view, the Appellant did
make some response to the original ET1, albeit not the right response; and
though he did not respond at once to the letter of 14 September he did do
so within two weeks.
23.
Finally, the Judge concluded, at paragraph 11 of the Reasons:
“I look for a good reason why these rules have been breached and
if there is no good reason then the rules must prevail. Under these
circumstances I consequently find that there are no grounds that the interests
of justice request a review. The matter will now proceed undefended.”
24.
Mrs Stanzel submits that that reasoning was plainly defective
because the Judge proceeded, contrary to the principles set out in Kwik Save
and applied to this class of case in Pendragon, on the basis that
the only question was whether a good reason had been shown for the Appellant
not putting in his response in time. The Judge failed to give any
consideration to the balance of prejudice and, in that context, to the merits
of the defence.
25.
We can see no answer to that submission. It is indeed plain that the
Judge decided the case only on the limited basis set out in the Reasons. That
misdirection would not matter if the decision was one that was bound to be the
same if the correct principles had been applied, but we are not prepared to say
that this is such a case.
26.
We must therefore allow the appeal against the decision of
22 March 2010.
27.
The question then arises whether the review application should be
remitted to the Tribunal for reconsideration or whether, as Mrs Stanzel
invited us, we should use our powers under section 35 of the Employment Tribunals Act 1996
and decide that question for ourselves. We think we should take the latter
course. This case has been going on for a long time already. If we remit the
review issue to the Tribunal, there will be a further substantial delay before,
depending on the outcome, the case comes to a full hearing. We believe that we
are in as good a position as the Tribunal to decide the question. We bear in
mind that the Claimant has not been present or represented on this appeal to
put her side of the case; but that was her choice, and we are in any event
confident that we are aware of the points that she would wish to make.
28.
In our view a late response should be admitted in the terms of the
revised version of the Appellant’s ET3. We believe that this is the right
course in the interests of justice. That is for essentially three reasons:
(1) While
the Appellant undoubtedly acted foolishly in not submitting a response at the
same time as protesting about the mis-spelling of his name, it is not as if he
did nothing: he did write to the Tribunal. We would attach weight to that
point simply on the basis of the Tribunal’s findings, but it is reinforced if
we have regard to the terms of the letter itself, as lodged with us, which ends
with the phrase “please advise.” We should also note that Mrs Leach
herself makes the point in correspondence, and the Judge made a finding, that
following receipt of the ET1 the Appellant got in touch with the Claimant and
with ACAS in order to see how the matter might be resolved. That too does not
suggest a party who simply wishes to ignore the whole case.
(2) Even if,
as the Judge found, there was no real excuse for the delay between
14 September and 1 October, that delay was not very long.
(3) Importantly,
we think that the prejudice to the Claimant of having to have her claim now
reconsidered at a fresh hearing is outweighed by the injustice to the Appellant
of having a serious finding made against him, attracting a substantial award of
compensation, in circumstances where he has not been able to put his side of
the case. As to that, we should say as little as possible about the merits. We
need only say that we are satisfied that there are at least arguable points on
the merits of the claims, both of disability discrimination and of unfair
dismissal (in the latter case, more specifically, of whether the Claimant was
entitled to resign when she did). We should also say that there are arguable
points about quantum. In particular, the Tribunal was unaware at the time that
it made its award for loss of earnings that the Footloose shop had in fact
closed down in August 2009 - that is, only two or three months after the
Claimant’s resignation. It is, for obvious reasons, at least arguable that
that puts a terminus on the period for which loss of earnings should have been
awarded.
29.
Accordingly we not only allow the appeal, but we direct that the amended
response form, which appears in our bundle at pages 41‑45, should
stand as the Respondent’s response in these proceedings.
30.
It follows from that decision that rule 9 will cease to apply. It
also follows that the second appeal must succeed, since the Appellant was not
given the opportunity to appear at the hearing.
31.
We leave it to the Tribunal to decide what directions are necessary, but
it seems to us that there will almost certainly need to be a case management
discussion.
32.
We will order that this Judgment be transcribed so that the Claimant
knows the basis of our decision.
