Appeal No. UKEAT/0568/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 January 2007

Before
his honour judge McMULLEN qc
MS K BILGAN
MRS A GALLICO

TERRY BALLARD & CO (a firm)                                                                                	APPELLANT

MS A STONESTREET                                                                                	 RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr T Ballard
(The Appellant in Person)	
For the Respondent	Ms A Stonestreet
(The Respondent in Person)	

SUMMARY
Practice and Procedure – Review; Insolvency
A Respondent debarred under rule 4(1) and 9 may apply for a review and, if granted, appear as a full party.  Otherwise there is no purpose in allowing it to make an application under rule 35.  The Employment Tribunal erred in the administrative arrangements it made after he was debarred, causing confusion and unfairness, and wrongly refused to review the substantive judgment.  D&H Travel and NSM Music applied. Remitted to the same Employment Tribunal to hold a review limited to compensation, as from the outset liability was not contested.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about Employment Tribunal Procedure when a Respondent to a claim of unfair dismissal is debarred from further participation in the proceedings. The judgment represents the views of all three members.  We will refer to the parties as Claimant and Respondent.

Introduction
2.	It is an appeal by the Respondent in those proceedings against the judgment of an Employment Tribunal sitting at Brighton, Chairman Mr J W A Livesey and members, registered on 25 July 2006, with reasons on 26 September 2006.  The parties represented themselves. Mr Ballard is a solicitor and Ms Stonestreet was his employee.  Mr Ballard’s firm consists of himself.  

3.	The Claimant claimed unfair dismissal, breach of contract in failing to provide notice pay, and also failure to supply terms and conditions of employment contrary to Section 1 of the Employment Rights Act 1996.  The Respondent did not dispute the claims in responses which were not accepted by the Tribunal, but did dispute reinstatement and compensation as then claimed.  Compensation was subsequently the only issue. As a result of the non-acceptance of his responses he was debarred from playing any part in the proceedings, with limited exceptions.

The judgment
4.	The substantive Employment Tribunal decided in the Claimant’s favour and awarded compensation in the sum of £17,870.24. The Respondent appeals against that judgment.  It is conceded today, however, that the reach of the order sought is a remission to an Employment Tribunal to hear compensation issues.  It is accepted that the order for automatic unfair dismissal, for breach of the duty to provide written particulars and for breach of contract should remain in place.  An application to add additional grounds to the notice of appeal was allowed without objection by the Claimant.  We have not found it necessary to deal with a further application by the Respondent to adduce additional evidence. 

5.	Directions for sending the appeal to a full hearing were given in chambers by Elias J (President).  He was anxious that attention be drawn to the judgment he gave with members in D&H Travel Ltd v Foster [2006] ICR 1537, which we made available to the parties this morning.  The President volunteered that it is not the easiest case to untangle. 

The legislation
6.	The relevant provisions of Employment Tribunal practice are the following Employment Tribunal Rules 2004: 

“4.—(1) If the respondent wishes to respond to the claim made against him he must present his response to the Employment Tribunal Office within 28 days of the date on which he was sent a copy of the claim. The response must include all the relevant required information. The time limit for the respondent to present his response may be extended in accordance with paragraph (4).
(2) Unless it is a response in proceedings described in regulation 14(3), any response presented on or after 6 April 2005 must be on a response form prescribed by the Secretary of State pursuant to regulation 14.

8.—(1) in any proceedings if the relevant time limit for presenting a response has passed, a chairman may, in the circumstances listed in paragraph (2), issue a default judgment to determine tie claim without a hearing if he considers it appropriate to do so.
(2) Those circumstances are when either —
(a)	no response in those proceedings has been presented to the Employment Tribunal Office within the relevant time limit; or
(b)	a response has been so presented, but a decision has been made not to accept the response either by the Secretary under rule 6(1) or by a chairman under rule 6(3), and the Employment Tribunal Office has not received an application under rule 34 to have that decision reviewed;
and the claimant has not informed the Employment Tribunal Office in writing either that he does not wish a default judgment to be issued or that the claim has been settled.
(3) A default judgment may determine liability only or it may determine liability and remedy. If a default judgment determines remedy it shall be such remedy as it appears to the chairman that the claimant is entitled to on the basis of the information before him.
9.	A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to—
(a)	make an application under rule 33 (review of default judgments);
(b)	make an application under rule 35 (preliminary consideration of application for review) in respect of rule 34(3)(a) and (b);
(c)	be called as a witness by another person; or
(d) 	be sent a copy of a document or corrected entry in accordance with rule 8(4), 29(2) or 37: and in these rules the word “party” or “respondent” includes a respondent only in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes.

34.—(1) Parties may apply to have certain judgments and decisions made by a tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are— 
(a)	a decision not to accept a claim, response or counterclaim
(b)	a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and
(c)	a decision made under rule 6(3) of Schedule 4 and references to “decision” in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules.
(2) In relation to a decision not to accept a claim or response, only the party against whom the decision is made may apply to have the decision reviewed.

35.—(1) an application under rule 34 to have a decision reviewed must be made to the Employment Tribunal Office within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.
(2) The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), but if the decision to be reviewed was made at a hearing, an application may he made orally at that hearing.

36.— (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 chairman or tribunal who made the original decision.”

We have omitted rule 33, which is a review of default judgments.

The facts
7.	The facts so far as relevant on appeal are that the Claimant presented a claim form on 12 December 2005, alleging the claims we have set out above arising upon the termination of her employment by dismissal on 8 September 2005.  On 4 January 2006 the Respondent wrote a letter of appearance accepting liability. On 9 January 2006 the time limit for submitting a response form under the 2004 rules ran out. On 16 January 2006 the letter, which complied with the 2001 rules, was rejected and a copy of the prescribed form was sent and requested to be filled in.  It was presented on 23 January 2006. On 26 January 2006 a Chairman, Mr Cowling, made a judgment under rule 4(1).  The Respondent had not provided a valid response within the time limit and therefore the Respondent could not take part in those proceedings. That of course had to be a reference to rule 9.  The Respondent was advised how to apply for a review and appeal to the EAT and a time limit for each was given. 

8.	On 28 February 2006 a document known as ET4 was sent, which was the notice of hearing.  It was directed to both parties and a copy was sent to ACAS.  Thus a distinction is drawn on the face of the document between those to whom it is addressed and those to whom it is sent for information. It was submitted by Mr Ballard that that date is within the 42 day period allowed for appeal to the EAT.   Whilst he was contemplating making an appeal to the EAT against his debarment, he received this notice of hearing from which, he tells us, he assumed he was to be allowed back in to the proceedings by reason of his submission of a correct response, 14 days out of time.  The hearing did not take place as listed because an application for a postponement by the Claimant was granted on 10 May 2006.  The regional Chairman, Mr Peters, agreed to a further postponement and said that the matter was to be relisted on an alternative mutually convenient date.  He apologised for any inconvenience caused to either party as a result of the postponement.  Dates were canvassed in a matrix which was completed by Mr Ballard on 19 May 2006, indicating his agreement to certain dates and he was asked how many witnesses he expected to call.  

9.	On 12 July 2006 a hearing took place, in the absence of Mr Ballard, where the Claimant was heard, her evidence was produced and accepted, and the awards were made.  

10.	On 20 July 2006 the Claimant demanded the sum due from Mr Ballard.  A letter was written by Mr Ballard saying he had never received any notice or communication following his submission of the matrix of dates to avoid.  He said: 

“I intend to make an application to set aside last week’s order at the earliest opportunity and look forward to receiving a copy of it as soon as possible.”

11.	On 25 July 2006 the order was published, including the judgment but with no reasons.  On 2 August 2006, the Respondent made an application in writing for a review and sought written reasons. The grounds for the review were that he did not receive notice of the hearing, he was not present at the hearing and that it was in accordance with the interest of justice that the issue should be reviewed.  Those correspond in terms to applications under rule 34(3)(b), (c) and (e) and reflect the limited access a debarred Respondent has to the review process.  

12.	On 1 September 2006, without reasons for the judgment, a notice of appeal was lodged with the EAT citing grounds which were those set out in his notice of an application for a review.  

13.	On 7 September 2006 a letter was sent on behalf Mr Livesey, the Chairman at the substantive hearing, saying as follows:

“Mr DN Cowling ordered that you should play no part in the proceedings under RuIe 9, following your failure to serve a response on time. You did not seek to review or appeal that order. It would appear that the Tribunal thereafter continued to notify you of the hearing dates in error.	
 The application for review is therefore refused; unless or until you were to have Mr DN Cowling’s order overturned, nothing would be gained by a review of the judgment that was made on the 12 July 2006.”

This was followed by reasons in writing sent on 26 September 2006, followed by a further application based upon these reasons.  It was described as an application for a review and response to written reasons.  As an application for a review it was therefore in time.

14.	A number of grounds were set out, including both a procedural position and an attack on the facts.  It is sufficient to indicate that on the face of it, this document indicates that there is substance in the Respondent’s case to challenge some of the findings of the Tribunal in the relation to compensation.  That application was dealt with on 17 October 2006, in a letter on behalf Mr Livesey saying as follows:

“You are still prevented from playing any part in the proceedings by virtue of the Order made on 26 January 2006 under Rule 9.
The application appears to be under Rule 34 in respect of the Judgment of 12 July 2006, but you need to apply under Rule 33 in respect of the Rule 9 Order, and you must include an application for an extension of time and provide reasons for the delay. (Rule 33(2))”
 
It will be noted from the above this is a reference to a review of a default judgment, for rule 33 deals with that.  This is the beginning of a seismic error running through the succeeding events, if not some of the earlier ones.  

15.	In response, on 23 October 2006, the Respondent applied for a review of the default judgment and for an extension of time.  It is assumed that this is an application in respect of the rule 9 debarment, but it is cast expressly in terms of paragraph 33 of the review judgment.  However, Mr Ballard was careful to say this:

“It is entirely without prejudice and to be considered alongside the following:-
a.	application for a review dated 2nd August 2006 (and in particular, paragraph 2 thereof);
b.	letter to EAT dated 13th September 2006 with chronology (in particular, in relation to the precise legal status of the order of the 28th February 2006 and whether I had any legitimate expectation arising from it);
c.	application for a review dated 5th October 2006 (and in particular, the first paragraph thereof (headed ‘procedural position’)).”

16.	 On 29 November 2006, the matter was the subject of a response on behalf of the regional Chairman, Mr Peters.  The application was rejected on the ground that it was made out of time.  Reasons are set out for that.  They include the following passage relating to the period following 26 January 2006 when the rule 9 order was made:

“No further communication was received from you until 20 July, after you had received the judgment made at the hearing on 12 July.”

17.	Both of those assertions are demonstrably incorrect.  The Respondent had submitted his dates to avoid (assuming as he did that he was still a party) on 19 May 2006.  He had not received notice of the hearing on 12 July and the judgment was not sent to him on 20 July either.  The substance of this rejection relates to what was said in respect of the rule 9 debarment, for Mr Peters said this:

“Your application of 23 October has been treated as an application for a review of the decision to reject your Response.
The time limit for making an application for a review of that decision is 14 days from the date on which the decision was sent to you. The decision was notified to you by letter of 26 January 2006 and, accordingly, the time within which to apply for a review of the decision to reject your Response expired on 9 February 2006. The application for a review is some 81/2 months out of time. There is nothing in the application for a review to explain why the Response on the appropriate form was not submitted in time. You are a solicitor and should be aware of the consequences litigation time limits. In the meanwhile, the case has been heard and decided.
In all the circumstances, the chairman does not consider that it is just and equitable to extend the 14 day time limit, so as to consider this application for a review.
The chairman wishes me to add that had the application for a review been made promptly with adequate reasons for the delay, the result, in all probability, would have been different.”

All that happened thereafter was that additional grounds of appeal were submitted on 3 November 2006, by which time an order had been made by Elias J (President) sending this matter to a full hearing, albeit that it was not sealed and sent to the parties until 8 November 2006.  As of today, those additional grounds therefore are in play.  As can been seen, the Employment Tribunal Chairmen between them considered the relevant rules.
The  Respondent’s case
18.	The Respondent submitted that the combination of Chairmen and administrators at the Employment Tribunal had made errors of law.  He made clear he did not attack the making of the order debarring him.  He accepts that the response was on the wrong form.  The rule had been in operation for three months and he cannot say it was wrongly applied.  However, he does say that the Tribunal was under a duty to regard the rules of natural justice and it had continued to treat him as a full party to the proceedings.  He assumed that by whatever route, his formal response had been accepted. 

19.	The Tribunal had accepted that it had made errors in communicating with him.  Those errors were explained to us by the Claimant, for she had asked the Tribunal Secretary about this and she tells us the Tribunal accepted that a mistake had been made.  It seemed to issue standard forms which do not take account of the bespoke situation when the Respondent is debarred.  So, correspondence was directed to Mr Ballard requiring him to take various steps, which he took.  He contended, however, on the basis on D&H Travel (to which we will turn) that he should not be shut out from contesting at least the compensation, which is the scope of relief he seeks at a hearing.  He further contends that if he had not been seduced by the administration into thinking he was still a proper party he would have appealed the position in February 2006, and thus he had altered his position in respect of it.  There is substantial prejudice to him in that he is the Respondent to a very substantial award, much of it contested, and the debarment of him from all the proceedings was disproportionate to the fault, which he accepts.

The Claimant’s case
20.	We have made allowances for the difficulty which the Claimant faced in the light of her medical condition, as reported in the judgment of the Employment Tribunal, when she addressed us today.  We have given her an additional opportunity to make any points she wishes to make and she has assured us that she has made those points, fully understanding the way in which the case has been addressed by Mr Ballard, and in light of the new authority (D&H Travel, she contends that this whole process is set up to delay the payment which she is properly due from the Respondent.  She cites as an illustration of that kind of approach NSM Music Ltd v Leefe [2006] ICR 450, Burton J (President).  She has been forced to go to the trouble of enforcing the order in the county court, and tells us the bailiffs are on the trail.  She sees no reason why she should be kept out of her compensation.  

The legal principles
21.	The legal principles to be applied in this case are overlaid with the overriding objective and the need to see that justice is done.  To be more specific, the judgment in NSM makes the following observations in respect of the relationship between Rule 4 and Rule 9:  

6.	It is quite plain, then, that if there is a default judgment, there is an express power of review, and considerations can then be given as to the remedies that should be imposed by a Tribunal or, in the case of a hearing of a review, retained in respect of such default as there has been by a respondent. In Bolch v Chipman [2004] IRLR 140, the Employment Appeal Tribunal considered the consequences, not in that case of a default judgment under the then equivalent of Rule 8, of a decision to strike out a Notice of Appearance under what was then Rule 15(2)(d): and we considered in that case the consequences which ought to flow and/or could flow, and we required an employment tribunal, among other things, to consider the proportionality of what it was doing. We pointed out that if a fair trial were not possible on liability, there could still be an order simply debarring the respondent from taking any further part on liability, but permitting that respondent to take part on the question of compensation.

7.	Where a default judgment is not entered, there may be no occasion for such considerations of proportionality, because, as Mr Stephen Lennard of Counsel (who has argued the matter most ably on behalf of the Respondent to this appeal, the Claimant below) has pointed out, the terms of Rule 9 are very limited. But that does not mean that a tribunal is not all the more required to take very great care in relation to the consequences of its decision not, in a given case, to enter a default judgment but simply to use the much greater bludgeon of an instrument of a consequential order under Rule 9. If, as here, the effect of not entering a default judgment with its appropriate considerations either on an original decision or on a review, but of taking the course of a Rule 9 decision, is that the respondent is debarred, whatever the nature or quality of its default, from contesting both liability and remedy or quantum of compensation, it is all the more important for an employment tribunal carefully to consider the position in the light of such orders it has made in protecting, so far as is proportionate, the position of a debarred respondent.

22.	It is to be hoped that in the future, if this occurs, a Tribunal will consider very carefully whether to go down the route of Rule 9 rather than a Rule 8 default judgment, bearing in mind these possible consequences and, if the Rule 9 route has been adopted, will take extra care to consider the consequences to the Respondent and, for example, to take the course I have suggested in relation to a request for reasons. 

22.	In D&H Travel, Elias J and members said this referring to Mr Henderson who is the relevant Respondent: 

“55.	Had the Chairman appreciated that Mr Henderson wanted at least to be allowed the more limited right to participate in the remedies hearing, was there a route whereby he might in principle have permitted this?  We think that there was, although we readily concede that the route is tortuous and highly artificial, at least in circumstances where the default judgment on liability stands. 

56.	The route is this.  As we have indicated, the only way in which a challenge can be mounted to a refusal not to accept a response where no default judgment is entered is through a review under Rule 34.  So far as remedy was involved, there was no default judgment with respect to that, and therefore nothing to set aside pursuant to rule 33.  So a rule 34 review was the only route.  That presupposes that a response has been refused. It is true that no formal response had even been drafted or submitted, but we think that in rejecting the review of the default judgment, the Chairman must be taken to have also rejected an application to permit the late submission of a response. After all, the essence of a review of a default judgment is that the Tribunal is being asked to accept a response out of time.   Had the response been accepted then the default judgment would have been set aside.  That refusal to allow a response could then itself be the subject of a review under rule 34.  Normally that would require an application in writing but there is an exception where it is made orally at the hearing where the decision which it is sought to review was made: Rule 35(2).  That was the position here, at least if the representations by Mr Henderson could realistically be seen as an application for a review.  

57.	We think that they could.  Mr Henderson was plainly hoping to put his case; even if he could not reopen liability, the only fair inference, it seems to us, is that he wanted to play whatever part he could in the proceedings. He was present and anxious to do so.   Moreover, it is well established that no great formality will be required from litigants in person in these circumstances.  In particular, an application for a review under rule 34 is sufficiently made out if grounds can be discerned from the application: see Sodexho Ltd v Gibbons [2005] ICR 1647 at paras 32-33. There can be no real doubt that this was done here; Mr Henderson was saying that it was not fair that he should be excluded from putting his case.  That was in legal terms saying that the interests of justice required a review. 

58.	The artificiality of this, as we fully appreciate, is that in practice the response will focus on liability – which, by definition, will already have been determined in the default judgment – rather than on remedy itself.  Accordingly, if Mr Henderson were to be allowed to put in a response in this case, it would not have been for its real purpose of setting out the employer’s case in response to the claim, but for the sole purpose of circumventing rule 9.  

59.	Accordingly, whilst we are not remotely critical of the Chairman for adopting the position he did, we think that had he applied his mind to the more limited question whether there was a way of circumventing the effect of rule 9 so as to enable Mr Henderson to participate in the remedies hearing, there was indeed such a path.  One possibility now would be to remit the matter for that possibility now to be explored.  However, we have the power to dispose of the matter by exercising the powers of the employment tribunal: see section 35(1) of the Employment Tribunals Act 1996 and we think we should exercise it.

60.	We are conscious of the decision of the Court of Appeal in Bennett v Southwark LBC [2002] ICR 881 where that section was said to apply only where there was but one conclusion the employment tribunal could reach.  However, that was before the overriding objective was incorporated into the Rules.  We agree with the approach of HH Judge Peter Clark in the Sodhexo case that where the basic facts are not in issue, it will sometimes be desirable and in the interests of the fair and expeditious disposal of the case for the EAT to determine the matter without further referral.  We think this is such a case. There are no more facts to be found, and we have heard full argument on the point.  In fact, we are also minded to think that there could only be one sensible outcome on this issue, as we will explain.”

23.	It must be borne in mind that a debarred party still has a right of appeal see Atos Oregon IT Services (UK) Ltd v Haddock [2005] IRLR 20.

Conclusions
24.	We prefer the arguments of the Respondent, and have decided to allow the appeal.  The route we have taken follows that in D&H Travel.  We think the fault in this case was a failure to recognise how serious the consequences are of the automatic effect of Rule 9, as against the more liberal approach of a default judgment under Rule 4.  There must have been a consideration under Rule 8 of default judgments, because the circumstances presented to the Chairman applied to this rule.  Whether by his ineffective 2001-style response, or by his out-of-time-by-two-weeks official response, the Respondent was not resisting the claim.  

25.	It is open to a Chairman under the provision of Rule 8 to decide liability in a default judgment and also, if appropriate, to decide remedy.  In this case, it was clearly appropriate to have a hearing on remedy, for that is what occurred and we consider that to be right.  It is one thing for a Respondent to accept liability, but it is quite another to write a blank cheque for whatever compensation the Claimant might seek.  Very sensibly, both the rule and the practice in individual cases, separate those two processes.  In this case, the Tribunal at the substantive hearing unfairly criticised the Respondent for failing to appear at the hearing of which he had no notice.  That obviously played a part in the judgment.  It is also recognised in Mr Peters’ letter that had the Respondent acted more quickly, the result would have been very different for him.  

26.	It is also clear that in the consideration of the application for a review, the Chairman has failed to pay attention to the fact the Respondent was continuing to play a part by reason of his submitting a matrix for dates to avoid, and that the approach to Rule 9 is flawed.  We have no doubt that the Respondent was directed to make an application in respect of a review on the grounds in Rule 33 (default judgments) because he was directed that way by the Employment Tribunal.  That was an error.

27.	 Further, on 7 September 2006, Mr Livesey further held that nothing would be gained by a review of the substantive judgment until an order was made overturning the debarment order, as it is put, or realistically the automatic effect of Rule 9, which was within the original letter of Mr Cowling.  The error is that there is expressly allowed a route to participation in Employment Tribunal proceedings for a debarred party to seek a review.  While debarment is in place, a review can be sought without an application being made to overturn the debarment..   Thus we hold this direction of Mr Livesey is also an error. 

28.	That approach also is repeated in Mr Peters’ response on 29 November 2006, harking back to the failure to challenge the Rule 9 debarment order.  For the reasons we have given that too is, with respect, an error.  As we have pointed out, it was written on the basis of wrong information, it being held against the Respondent that he had had no communication before 20 July.

29.	What is the effect of applying D&H Travel?  In both that case and NSM there is an indication that it is open to a party debarred from  taking part in the proceedings to take part in proceedings on remedy, and this is indeed reflected in the CPR, Part 12.4 1(b), which triggers the Part 12.7 procedure.  It therefore is just for a review to be allowed in the circumstances.  The application was made which fits the contours of the three relevant grounds in rule 34(3) applicable to a debarred Respondent.
  
30.	What is the benefit of lifting the bar on a Respondent in this narrow way, if the Respondent cannot be let back into the proceedings?  The rules are silent on this.  It seems to us that if a Respondent applies properly after debarment for a review of the substantive judgment against him, then a Chairman must give full consideration to it and, unless it has no reasonable prospect of success, there must be a review: Rule 35(4).  It is a requirement that grounds be given for the review.  ‘In the interests of justice’ is a very wide heading and is likely to include substantive evidence relating to what a party did and what prejudice is suffered.  The purpose of allowing a debarred Respondent to make that application is for it to be allowed to enter back into a review hearing, even though it had not been present at the substantive hearing, and for it to become a party.  It is expressly designated to be a party for the purposes of Rule 35.  It cannot be right that, having raised the expectation that he can have a review, he must sit silently by at the hearing while the points he has made are considered and possibly destroyed without his participation.  Thus, in order to give utility to this limited lifting of the bar in the Rules, it is necessary to imply into the rule that a party, having made an application which is not refused by the Chairman under Rule 35, will proceed to a review and be a full party at that stage.

31.	It follows that if the grounds for a review attack the liability, that is a subject for review.  But it could be more limited, as here, to an attack on compensation.  We hold the Employment Tribunal, in its combination of measures, erred in law.  There should have been acceptance by the Tribunal of the Respondent’s application for a review; it did not go through the correct process in dealing with these matters, confusing itself and the Respondent with its constant reference to default judgments under Rule 33.

32.	Further, there is substance in the Respondent’s case.  Although we do not have to determine it, it is a matter which would go towards the interests of justice requiring a review, that he was, throughout the early stages of the procedure, kept in the loop and written to and his responses were required as a full party, now accepted to be an error by the Employment Tribunal.  We have no doubt that it is proper for notice to be given of the date of a hearing, so that a debarred party may attend.  We accept that Mr Ballard (notwithstanding the very correct recognition by Mr Peters that he is a solicitor and should be aware of the consequences of all litigation time limits) was confused by the error of the Tribunal Office.  

33.	We have therefore decided that in light of this error we will ourselves hold and substitute our judgment that there should be a review hearing at which the Respondent may attend as a full party.  It is to be limited to issues of compensation, for we uphold the judgment that there was automatic unfair dismissal.  The elements of compensation, which are not challenged, are the finding that under the Employment Rights Act s1 two weeks’ notice should be paid for failure to provide terms and conditions and that there should be an uplift of at least 10%, but other matters will be subject to evidence and submission.  There is no dispute as to £250 for loss of statutory rights.  We see no reason why these sums should not be paid forthwith. 

34.	Having canvassed the views of the parties, there is no resistance to our suggestion that this matter be best handled expeditiously by the same Employment Tribunal, unless, in the opinion of the regional Chairman, that is impracticable when it can be constituted in another way.  The appeal is allowed.