Appeal No. UKEAT/0064/04 & UKEAT/0065/04 MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 April 2004

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MS K BILGAN
MR D CHADWICK

MR P COOKE	APPELLANT

GLENROSE FISH COMPANY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR DAMIAN BROWN
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Price House
37 Stoney Street
The Lace Market
Nottingham NG1 1NF	
For the Respondent	MR IAN REES
(Representative)
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester M3 5PB	

SUMMARY

Practice and Procedure

On non-appearance by Applicant (as it turned out, due to negligence by his solicitor), the tribunal proceeded, and dismissed his claim: it then refused to hear a Review because of the wasted hearing and of the existence of a remedy against the solicitor.  Bartholomew reconsidered (ET does not need to telephone a party on non-attendance but should certainly consider doing so (and should have done so in this case, where solicitors on the record)).  Review should have been granted.  Remedy against solicitors not material – and costs (upon undertaking by the solicitors to meet any order) sufficient to resolve prejudice.

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This has been the hearing of an appeal by Paul Anthony Cooke (an Applicant) against two decisions of the Employment Tribunal sitting at Hull.

2.	The first decision was made on 10 October 2003 when the Applicant’s claim for unfair dismissal was dismissed upon his non-attendance.  The Respondent was present, represented by Mr Ian Reece, a consultant and former solicitor, who has also appeared before us, and the Applicant, as we have indicated, did not appear, although at all times he has been represented by the well-known firm of solicitors, Messrs Thompsons, at their Nottingham branch.

3.	It now appears that the reason why there was no-one attending, either the Applicant himself or anyone from Thompsons, was through a culpable error by the solicitors themselves.  On the day the case was listed, since it was a Leeds case listed in Hull, it was listed to start at 10.30 am, to allow time for people to arrive, it appearing that normally cases start at 10.00 am.

4.	The Tribunal waited until 10.50 am.  Mr Reece has told us that a bundle, which he had put together after agreement with Thompsons, had been lodged with the Tribunal in advance.  It was apparent that the Tribunal was waiting for the Applicant to turn up, and when by 10.50 am he had not arrived, the Tribunal went into court and indicated to Mr Reece, without further discussion with him, that they had waited long enough, and they would now start.  It does not appear as though the Tribunal invited any further enquiries of Mr Reece, and it is not clear whether the Tribunal took any steps itself to make any enquiries before coming into court.  It appears likely that it did not, not least because had a telephone call been made to Messrs Thompsons (and there is no sign that it was) the oversight would immediately have been discovered.
5.	The hearing before the Tribunal was of necessity not wholly abbreviated because it was a claim by an applicant who was absent, and the Tribunal was required, by virtue of Rule 11 (3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, to give some consideration to the case of the party who was not present.  11 (3) reads as follows:

“If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 10(5) and any written answer furnished to the tribunal pursuant to rule 4(3).”

6.	The Summary Reasons which were produced by the Tribunal dated 21 October 2003 give the impression that there was no such consideration.  The reasons are very short and read as follows:

“2.	The applicant did not attend and was not represented at the hearing.  No explanation was given for the applicant’s non-attendance.  The respondent was represented by Mr I Reece, Consultant, and Mr M Kendrick, Operations Manager, attended to give evidence.
3.	The tribunal took the opportunity to read the statement provided by Mr Kendrick and asked some questions relating to the statement.  The tribunal concluded that because of the applicant’s non-attendance this morning, the respondent had satisfied it that it had dismissed the applicant for a potentially fair reason for dismissal under the head of redundancy and considering the case of Williams v Compair Maxim Limited, the tribunal found that the respondent had acted reasonably in using this reason as a reason for dismissal…”

7.	On the face of that, it would have appeared that Rule 11 (3) had not been complied with.  However, clarity was provided by the somewhat longer Extended Reasons, which were supplied on 31 October 2003, which made it apparent that the word “because” should be read not wholly causally but rather consequentially, i.e. in the sense that the Tribunal did, as it made clear in paragraphs 4 and 5 of the Extended Reasons, consider the Applicant’s case, including his Originating Application, but, because it also considered the evidence from Mr Kendrick and since, due to the non-attendance of the Applicant, Mr Kendrick’s evidence was uncontested, that led to the Tribunal being in a position to reject the Applicant’s evidence and accept the evidence of Mr Kendrick, which it unanimously did.  Consequently, any ground of challenge by reference to a failure to comply with Rule 11 (3) would not have been successful, notwithstanding the arguability of such a case if the Summary Reasons had stood alone.

8.	But the appeal pursued by Mr Brown, instructed by Thompsons on behalf of the Applicant, was based on a decision of this Employment Appeal Tribunal, London Borough of Southwark v Bartholomew now reported at [2004] ICR 358.  In that case there was the clearest possible situation in which the Tribunal ought to have made enquiries before taking the course it did.  The local council, which was there the employer, was in the middle of a disciplinary process in respect of the Applicant, and the Chairman of the Tribunal himself in giving judgment indicated how unusual it was that the council should not have attended.  Further, the address that had been given for the council, as was apparent to the Tribunal, was not entirely accurate, and a document setting out the full nature of the Respondent’s case, and giving reference, names, numbers and contact was before the Tribunal, and yet no steps were taken to investigate the non-attendance of the Respondent.

9.	In that case there was put before this Employment Appeal Tribunal a passage from Harvey on Industrial Relations and Employment Law at paragraph T829, which was said to reflect the normal and proper practice at Employment Tribunals in the event of non-appearance by a party.  We quoted in it full in paragraph 13 of that judgment.  It was said there that the ordinary, or at any rate the proper, practice where a party fails to appear ought to be that the Tribunal Clerk would endeavour to contact that party by telephone at his/her last known address, and enquire whether or not he intends to appear.  We said in paragraph 14 of our judgment that

“It is quite manifest that that practice, which is set out by Harvey, is not only what ought to occur but what ordinarily does occur and we expressly approve it.  Mr Aziz [who was appearing for the Applicant in that case] … indicated that in his experience, appearing as a consultant in the Tribunals, that is ordinarily, although he says not universally, the practice. … It is certainly the practice of this Appeal Tribunal…”

10.	Subsequent to the decision in Bartholomew, this Employment Appeal Tribunal has had drawn to its attention what in fact has been for some time the practice in Employment Tribunals which shows that Harvey’s paragraph, to which we have drawn attention, is out of date.  The present practice enshrined by a direction of His Honour Judge Meeran, the present President of Employment Tribunals, in a document dated September 2003, giving guidance to part-time Tribunal Chairmen, although we understand it is in fact the guidance given to all Chairmen, reads as follows:

“What if a party is absent?  Remember that there is no obligation on a party to attend the hearing.  Subject to your judicial discretion in any particular case, it is usually best to hear and determine the case.  Experience shows that attempting to contact the missing party or representative is unsatisfactory.  If a party did intend to attend but is genuinely absent, the matter can be put right on Review.”

11.	The words “if a party is genuinely absent” are not, with respect to the learned judge, entirely clear, because obviously, unless he is hiding round the corner, he or she is genuinely absent.  Presumably what was meant by that was absent for good reason, or at any rate not absent deliberately.  Judge Meeran therefore indicates that matters are best dealt with by being put right on review; and one can understand that at Employment Tribunals, particularly given the large number of unrepresented litigants, there will be some litigants, be they Appellant or Respondent, who have in fact decided not to attend, but, if telephoned on the day, might then change their minds, or at any rate represent that they have changed their minds, and thus lead to an adjournment; where if they were not telephoned and the case went ahead they might be perfectly content, as perhaps was always their intention, to leave the decision to stand.

12.	Consequently, it would appear that our understanding in Bartholomew of what practice is was inaccurate, so ought we to reconsider our view by reference to what the practice ought to be?  It is to be emphasised that Judge Meeran’s direction specifically does say “subject to your judicial discretion in any particular case”.  It is plainly essential for the Employment Tribunal to exercise that judicial discretion, and consequently whereas it may be wrong to say that in every case a Tribunal must telephone if there is an absent party, it is on the other hand clearly right to say that in every case a Tribunal must consider whether to telephone, and must, as it appears the Tribunal did not in this case, enquire further particularly of a represented other party what news there is or was of the other party, and as to whether in those circumstances it is possible that the other party is delayed or has forgotten about the matter but was, so far as can be understood, intending to come.  Of course, the represented other party will be required to exercise the highest standards of probity but at the same time be acting in the interests of his or her client.  There is no need for volunteering of assistance if it be not called for.

13.	But had the position been explored here, then it seems to us likely that the factual situation would have emerged, namely that Thompsons had been involved not long before, as we have indicated, in negotiations about the agreement of the bundle; and, although it was not said in terms in the correspondence we have seen that Thompsons were going to turn up on the day, they were on the record as solicitors, and they had been involved in preparing a bundle for that purpose; and, at the very least, a question mark would have been raised in the minds of the Tribunal.

14.	We conclude here that the Tribunal ought to have asked further questions than they did.  But we are not prepared, because of the course that we propose to take in this case, to say that necessarily the Tribunal erred in the exercise of its discretion.  Plainly if the Tribunal did not apply its mind at all to the question then they erred in the way that we have indicated earlier, because they should have done.  It may be that the Tribunal did turn its mind to the question here, but without further investigation the matter cannot be entirely clear to us.

15.	What, however, is absolutely clear is that if the Tribunal was going to take the kind of extreme step in this case of not telephoning, even though there was a solicitor on the record, then that must carry with it the obligation which Judge Meeran himself suggests, that the matter can be put right on a review.

16.	Before we turn to the review, therefore, we emphasise that our view remains the same as it did in London Borough of Southwark v Bartholomew, namely that in ordinary course the best procedure is that which is followed by this Employment Appeal Tribunal; but we are not laying down as a requirement that every Tribunal should telephone, we are saying that that course should be considered, and, in a case such as Bartholomew, or such as this, we would need very good reason why the course of a telephone call would not have been followed.

17.	What occurred here is that the Applicant, or more correctly Messrs Thompsons on his behalf, did put in an application for review; and in that application, which was put in for the purpose of seeking a review, it was made entirely clear that the error was that of Messrs Thompsons:

“Due to an administrative oversight on the part of the Applicant’s representative, [the Notice of Hearing] was filed without being entered into the diary of the solicitor with conduct to this matter without a stock letter being sent to the Applicant informing him of the hearing date – both are part of an automatic process in Thompsons’ case management system.”
18.	The submission that was made to the Tribunal was:

“This is a case where the Applicant and his representative had every intention and were preparing for a Tribunal hearing.  Their non attendance was the product of “perfectly honest and genuine mistake” due to an oversight in the administration of Thompsons’ case management system for which they apoligize.  However, the Respondent’s representatives were aware that the Applicant was preparing his case for trial and ergo that he was intending to attend the hearing and should have alerted the Tribunal to the same.
Before exercising their discretion under Reg 11 (3), and because of its draconian effect, the Applicant respectfully contends that as a matter of procedure the Tribunal should have satisfied itself that the Applicant had received notice of the hearing date.  The Applicant further respectfully contends that a Tribunal clerk should therefore have made enquiries to ascertain their present position and intentions.
Further if the Applicant’s representative had been so alerted to their oversight they would have confirmed their intention to attend and arranged for representation at the hearing, by agent or by a delayed start.  Alternatively, if that was impractical or if the Tribunal were not minded to delay the start of the hearing, the Applicant would have sought a postponement and conceded any application for reasonable costs.”

That submission was made before the decision in Bartholomew.  Of course Bartholomew supports that proposition.

19.	The application contained in that document was robustly rejected by the Chairman sitting alone, as is clear from a letter dated October 2003 and copied to the Respondent.  It reads as follows:

“Application for Review refused within Rule 13(5)…as the Chairman does not believe it has a reasonable prospect of success.
The Applicant’s representatives accept that because of their error the Applicant was not represented at the hearing on 10 October 2003.
The Applicant was invited to a fair trial on 10 October but did not attend…
If the Application for Review was accepted and the decision revoked at a Review Hearing the Respondents would be asked to attend on three occasions because of the error of the Applicant’s representatives.  This is not in the interests of justice within Regulation 10 and cannot be properly compensated for by an award of costs.
The Applicant is not without any remedy – his representatives appear to admit their error.
The Rules of Procedure 2001 require parties to be informed of the hearing date, time and place.  This was done.  There is no requirement to telephone and remind any party of a hearing.
Consequently the Chairman concludes that the application has no reasonable prospect of success and it is therefore refused.”

Thus, not only was the application for review refused but it was not in fact heard, because it was determined to have no reasonable prospect of success.

20.	The basis of the refusal is not entirely clear, because the reasons that are given, as we have quoted them, are very short indeed.  Doing the best we can, one can appear to tease out of that letter the following:

(1)	that the case did not really approach the hurdle of an appropriate occasion for a review because the Applicant had his chance to attend and, to use the colloquial, “blew it”;

(2)	that a factor in consideration as to whether to grant the review was that the Applicant would have a remedy against his solicitors on the basis of apparently admitted error;

(3)	that the wasted hearing could not be properly compensated for by an award of costs.

21.	So far as those three grounds are concerned:

(1)	With the first we do not agree.  Indeed, it would appear to be a necessary concomitant of the more stringent attitude encouraged by His Honour Judge Meeran (to which we have referred) that there be the less stringent attitude on a review if a party who has not attended comes forward with a genuine and full explanation and shows that the original hearing was not one which from which he deliberately absented himself.

Mr Reece in his very ably prepared submissions in response to the appeal has drawn our attention to a case called Mason v Hamer (unreported, EAT 9 June 1981 EAT/161/81) in which there was just such a deliberate absenting by the party, and the limit of the obligation by the Tribunal was said to have been that the Tribunal, in such absence, should have made further enquiries not in relation to the whereabouts of the party but in relation to the nature of that party’s case.  It was plain, and remains plain from the explanation given by the Applicant’s solicitors, that this was not such a case.

(2)	It may be a factor that the Applicant may have a remedy against his solicitors, but we are entirely satisfied that it is not a determinative factor, and indeed if anything is very low down the pecking order.  Mr Reece again in his very able submissions has drawn our attention to a number of authorities relating to situations where originating applications are out of time; and where the reason for the delay and the issue of reasonable practicability in terms of complying with the time limit revolves around negligence by the solicitor.  Those cases include: Capital Foods Retail Ltd v Corrigan [1993] IRLR 430, Dedman v British Building Ltd [1974] ICR 53, Digital Equipment (Scotland) Ltd v McClymont (unreported, EAT 23 July 1997 EAT/311/97) and Camden & Islington Community Services NHS Trust v Kennedy [1996] IRLR 381.  We did not think that his final case of Armitage v Serck Services (unreported EAT 15 November 1984, EAT/902/83) was directly relevant.

However, in all those cases, a statutory time limit had a very narrow exception of reasonable practicability, and in order for a party to bring himself/herself within it, it was necessary to show an absence of fault by the relevant solicitor, because, almost by definition, if it could reasonably been done had the solicitor not been negligent, then it was reasonably practicable to do it.

However, we are not facing here, in relation to a review where all that is required is an explanation as to the absence of the party, a situation in which it needs to be proved that there was no fault, and therefore, to that extent, the authorities to which Mr Reece has drawn our attention do not assist.
	To note that the Applicant would have a remedy against his solicitors may be one thing; but, as we have indicated, it does not appear to us to be a material factor.  What in fact underlies this suggestion would be that an Applicant who, it is obvious, must have been put in touch with Thompsons by his union, would be left without the assistance of those same solicitors to consider suing such solicitors for negligence, and although, of course, on the face of it, it is right to say that negligence would be largely proved, the issue would then arise as to what the quantum of his loss would be, and thereby, by satellite litigation, it would be necessary to prove himself against his old solicitors, in the usual way of a solicitor’s negligence case, what his chances of success would have been had he been entitled to pursue his claim against the Respondent; and that claim would have to be pursued in the High Court or County Court and not in an Employment Tribunal.  It appears to us that that is much too extreme a factor to be determinative.

(3)	We turn to the third matter, which is that the Tribunal appear to have concluded that the wasted hearing could not be compensated for by costs.  We find it difficult to know precisely what the Tribunal here had in mind.  It is quite apparent that, as things have turned out, the Tribunal was wrong about this in the sense that at that stage the Respondent could have been compensated for in costs by paying them the sum which it cost their consultant to attend at the hearing; and those are the only costs in respect of which they would have then been out of pocket, and they would have been, on the face of it, reimbursed by order against the Applicant.  As it turns out, the Applicant, having failed, has needed to come here to put the matter right, and that has caused the expenditure of a considerably greater sum of costs.

What may have been in the Tribunal’s mind, given that on the face of it a wasted hearing would ordinarily be compensable by costs, would be that the only jurisdiction that a Tribunal would have would be to make an order against the opposing party, there being at the moment no method within the present Rules whereby an order for costs could be made by way of a wasted costs order against representatives.

It may be, therefore, that the Chairman had in mind, although he does not say so – it is not said on his behalf in the letter in terms – that an order for costs made against the Applicant could be a vain or fruitless order if the Applicant had no assets, and might not even be pursued by the Respondent, because of some embarrassment of an employer suing or pursuing an ex-employee.  It might certainly have been clearer if Thompsons had made clear then, as they have made clear now, that any order for costs against the Applicant would have been met in terms by them.

22.	That has now been made clear to us, and whether that factor was an error by the Tribunal or whether, in the light of the other failings of the Chairman, to which we have referred, and the exiguous nature of the reasoning contained in the letter, we in any event would be entitled to exercise our own discretion and would ourselves now take into account the fact that there is to be an undertaking by Thompsons to make good any order for costs made against the Applicant does not now matter, because we do propose to set aside the order made by the Chairman in refusing the application for review or deeming it to be without prospect of success.  We do propose to exercise our own discretion, and substitute a conclusion that the original decision of 21 October ought to be reviewed, and indeed ought on such review to be set aside, such that the matter can be sent back for a substantive hearing before a different Tribunal.  

23.	We do make an order for costs against the Applicant in respect of the wasted costs of the first hearing, but we do so coupled with the undertaking with which it is accompanied by Thompsons, given by Mr Damian Brown on Thompsons’ behalf, that they will meet such order for costs.  We propose to take the course with the agreement of the parties of assessing those costs now in the sum of £500, and consequently that is the sum that will be contained in the order.

24.	There was argument as to whether we ought to or have any jurisdiction to make an order for the costs of this appeal in favour of the Respondent, in addition to a sum in respect of the original hearing.  Mr Reece submitted, as appears entirely logical, that the costs of his having had to come here to resist (albeit mostly unsuccessfully) the appeal all flowed from the original negligence of Messrs Thompsons.  On the other hand, we have no jurisdiction to make an order in respect of an appeal (at any rate under the present Rules) unless there is conduct by the Appellant which we conclude brings the position within Rule 34 of the Employment Tribunal Rules; namely that proceedings must be unnecessary, improper or vexatious, or there must have been unreasonable conduct in bringing or conducting the proceedings.

25.	We are not satisfied that in making the unsuccessful application for review and pursuing, as it now turns out successfully, the appeal, it can be said that the Applicant has been guilty of unreasonable conduct, and we do not make any order in respect of the costs of the appeal over and above the sum of £500 which more than amply compensates, we suspect, the Respondent in respect of the wasted costs of the hearing on 10 October 2003.

26.	In those circumstances, this appeal is allowed to the extent indicated and the matter will be remitted for substantive hearing before a differently-constituted Tribunal.