Appeal No. UKEATS/0025/08/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 30 October 2008

Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)

MR J DRUMMOND	       APPELLANT

1) BABCOCK NAVAL SERVICES LTD
2) MINISTRY OF DEFENCE (NAVY)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR J DRUMMOND
(The Appellant in Person)	
For the First Respondents	MR LEE
(Legal Adviser)
MBM Commercial LLP
5th Floor 
7 Castle Street
Edinburgh
EH2 3AH
	
For the Second  Respondents

	MR D L MURRAY
(Solicitor)
Messrs Morton Fraser Solicitors
30-31 Queen St
Edinburgh 
EH2 1JX

SUMMARY

PRACTICE AND PROCEDURE:  Striking-out/dismissal

Claim dismissed at pre hearing review when claimant did not appear and provided no justification for failing to do so. Review refused.  Claimant appealed against both original and review decisions. On appeal; although there was, in the circumstances, a strong case for striking out the claimant’s claim as his unjustified non-attendance could be seen as a failure to actively pursue it and his conduct had been unreasonable, since the procedure required by rules 18(7) and 19 of the ET rules had not been followed, the appeal had to be allowed. Claim remitted to the Employment Tribunal to fix a further pre-hearing review.

THE HONOURABLE LADY SMITH

INTRODUCTION 
1.	This is an appeal from a judgment of an Employment Tribunal sitting in Glasgow, Employment Judge Mr M W MacMillan, which was registered on 11 January 2008, dismissing the claimant’s application. 
 
2.	I propose to continue to refer to parties as claimant and respondents. 

BACKGROUND 
3.	The claimant was an energy and environment manager between 7 May 2003 and 16 February 2007.  He was made redundant and claims that his dismissal was unfair and that he was discriminated against.  His claim contains detailed allegations which I do not need to go into for the purposes of this appeal.  

4.	It is, though, necessary to consider the history of the case thus far. The form ET1 was presented to the Employment Tribunal on 15 May 2007.  Responses were lodged and a case management discussion took place on 29 August 2007. 

5.	Prior to the case management discussion, there was a telephone conversation between the Employment Tribunal office and the claimant, on 7 August 2007, in the course of which the claimant intimated that he suffered from dyslexia and requested that, in the light of that, information given to the office by him over the telephone be put in writing and referred to a Chairman for consideration.   As explained in a letter dated 8 August 2007, the Employment Tribunal undertook not to insist that either requests for information or the provision of information of the sort that required to be put before a Chairman be made by the Claimant in writing. Instead, the claimant could telephone, a written note of what was to be conveyed or to be requested would be made by the staff and would be sent to him for confirmation that that was what he wanted to convey to the Chairman.   It is clear that the undertaking was not given in respect of all telephone calls between the Claimant and the Employment Tribunal office.  It only applied to those which involved the making of a particular application to the Chairman or responding to a formal request for information.

6.	At paragraphs 3 and 4 of the case management discussion note, the Chairman, Mr MacMillan, records:
“3. Although this case was raised as recently as 15 May 2007, there has already been considerable correspondence. From this correspondence, it is clear that the first respondents as transferees were accepting responsibility for the relevant employment duties (excepting any individual discrimination responsibilities) and were prepared to absolve the second respondents (the Ministry of Defence (Navy) from these proceedings.
4. Mr Drummond was opposed to this. His view was that the relationship of both respondents was much deeper than that of transferor and transferee. There was no clean break. The transferors continue to have responsibilities towards some employees, including himself. He regarded the respondents as being in partnership, and that he was employed by that partnership as at the date of dismissal. This position was not accepted by either respondent.”

7.	He continued, understandably:
“5. It seemed to the Chairman that this was an issue that required to be resolved before all else. Effectively it is a matter of jurisdiction; we have to be aware of the identity of the employer before we can establish that we are dealing with an employment relationship. It will therefore be necessary to fix a Pre – Hearing Review on the issue of the identity of the employer.” 

8.	The remainder of the case management note deals with further details that the claimant would require to provide before his case could, in any event, reach the required level of relevancy for a full hearing on the merits to be fixed. However, as the Chairman made clear, since the first stage would be to hold the pre hearing review on the issue of the identity of the employer, he was not making any orders requiring further information at that stage although the tenor of his note was to encourage voluntary disclosure in the meantime.  The Chairman’s observations regarding what was required before the claim could be regarded as sufficiently relevant are expressly stated to be for the assistance of the claimant. 

9.	Following the case management discussion, the claimant wrote a six page letter to the Employment Tribunal dated 14 September 2007.  His letter included the statement:
“For the record the Claimant has at no time requested a pre hearing review.” 
and:
“it is the Chairman who will decide if he is going to hold a pre-hearing and not the Claimant or the Respondents.”

10.	The letter continues to make assertions to the effect that there was a partnership between the respondents which was relevant to his employment. It uses strong and sometimes offensive language about the first respondents.  Under reference to the case management discussion note, it indicates:
“The information sought by the Chairman is being prepared and will be provided as soon as it is available.” 

That letter makes no mention of the claimant’s state of health.

11.	The claimant wrote to the Employment Tribunal by letter dated 3 October 2007. In that letter he is again critical of the first respondents and repeats the assertion that both respondents were his joint employers. It states that the claimant objects to the listing of a pre hearing review and gives various reasons for his objection including:
“The Claimant does not wish a pre hearing to discuss the employer issue as he feels there is no requirement. Any decision can be taken by the Tribunal based on the documentary evidence already provided.
The Claimant does not see that any requirement for him to attend a pre- hearing review on the employer issue, as he has nothing verbally to add to the information already provided to the Tribunal.
…
Bearing in mind the Chairman has not made a decision on whether he requires to hold a pre‑hearing on the employer issue. I hope, if the Chairman if he decided to hold a pre- hearing to allow him to make a ruling, he will not do so negligently and will be able to justify his actions.
…
The Respondents requests for a pre- hearing should not even be considered by the Tribunal as they are clearly wasting everyone’s time and attempting to resort to showmanship.” 

12.	The claimant again makes no mention of his state of health.  He poses various questions in that letter, as he did in his earlier letter.

13.	The Tribunal advised, by letter of 11 October 2007, that the Chairman was not prepared to enter into correspondence. 

14.	The claimant wrote to the Tribunal, by letter of 22 October 2007. In that letter he set out details of the quantification of his claim.  He alleged that the first respondents had attempted to discredit him by stating false information, and alleged that someone had forged his signature on a termination payment letter.  At the end of that letter he stated:
“I attended the Pain Clinic today, as I was referred by a Consultant Orthopaedic Surgeon who specialises in backs. I am presently unable to attend meetings in Glasgow, due to back and sciatica leg pain.”   

15.	He also stated that all the “criminal revelations with forgery of my signature and now the police involvement” and “the harassments I have had to endure” had raised his stress levels and he would be making an appointment with his General Practitioner. 

16.	By letter dated 14 November 2007, the Tribunal wrote to the claimant advising that the Chairman had:
“… directed that a pre- hearing be arranged to determine the identity of the respondent.”

and that the Chairman considered it “critical” that that hearing take place if the case was to be progressed. The letter continued:
“That pre – hearing review ………………will take place once you are fit to attend. I would be grateful if you could let me know when that might be.” 

17.	The claimant did not reply to that letter.

18.	By letter dated 28 November 2007, the Tribunal wrote advising that the Chairman had directed that a pre-hearing review be arranged to determine the issue of the identity of the respondent. The letter enclosed a notice advising that the hearing would take place on 9 January 2008. The notice did not contain any warning that the case could be dismissed if the claimant did not attend. The letter stated:
“If you are unable to attend that pre–hearing review you are requested to provide a Soul and Conscience Certificate from your Doctor stating that you are unable to attend.” 

19.	The claimant wrote to the Employment Tribunal by letter dated 17 December 2007. In that letter the Claimant refers to having recorded the case management discussion. I should at this stage observe that it is not appropriate for any party to do so.  Only the Tribunal has the appropriate authority to make such a recording, for obvious reasons. 

20.	In the letter of 17 December 2007, the claimant states objection to the Chairman having refused to enter into correspondence with him regarding the case. He demanded responses to various matters raised by him in correspondence regarding his case and its merits and stated:
“IF YOU AND THE CHAIRMAN ARE NOT WILLING TO PROVIDE THIS INFORMATION WITHIN 7 DAYS , THEN I WISH THIS LETTER TO BE LODGED AS A FORMAL COMPLAINT AGAINST YOURSELF AND THE CHAIRMAN REGARDING THE CONTENT OF THIS LETTER.”

21.	He then referred to letters of 12, 13 and 15 October 2007.  At the end of the letter he stated:
“To save any dubiety at the Pre Hearing scheduled for the 9th January 2008 I request permission to again tape record the Hearing. Please respond within 7 days with your reply and if it is a refusal, please provide the reasons for the refusal.” 

It would thus appear that, as at 17 December 2007, the claimant was intending to attend the pre ‑hearing review.

22.	The claimant next wrote by letter dated 18 December 2007 indicating his desire for the employer issue to be determined:
“on the large volume of documentation provided to him and especially on the responsibilities covered in the Partnering Agreement.” 

He added that it would be detrimental to his health to attend a meeting. He indicated that his attendance at the pre–hearing review would be subject to his medical condition on the day. Regarding the earlier request for a soul and conscience certificate from a doctor to certify his unfitness to attend, he stated:
“… I have no problem with this as long as I receive in writing with proof from the Tribunal, that same requirement has applied to for the last 5 years to every Chairman, Lay Person, Claimant and Respondent’s Representative who failed to attend a Case Management Review, Pre–Hearing or Hearing due to a medical condition .” 

23.	I would certainly not expect a tribunal to accede to the imposition of such a condition by a party. It is quite unreasonable.  Normal tribunal and court practice is and has for many years been that where a party seeks to delay a hearing on account of his ill health (or the ill health of a witness) for consideration to be given to a postponement, the party must supply a “soul and conscience” medical certificate certifying unfitness to attend. The reason for the practice is obvious.  It is not fair to the other party that the case be delayed simply on the basis of the party’s own assertion on the matter. Nor is it consistent with the duty of the tribunal and the courts to seek in the public interest to make best use of their resources that hearing time should not be lost without proper justification. Fitness to attend a tribunal or a court hearing is something that can be verified independently and objectively by a doctor and it is accordingly not at all unreasonable that normal practice is that that is what is required. 

24.	The claimant finished that letter by stating that he wished to lodge a formal complaint against the Tribunal’s Mr Easton for “his allowance of an invalidated and criminal counter claim”, that being a reference to a counter claim that had been lodged by that stage. 

25.	The claimant had telephone conversations with the Employment Tribunal on 8 and 9 January 2008.  He spoke to Mr Moffat. On 9 January 2008 he faxed a letter to them at 9.18a.m. It was headed:
“Second Formal Request to Replace Mr McMillan as Chairman of the Below Tribunals.”

and was in terms which again alleged that the Respondents had made false statements, was critical of the Chairman in terms which were markedly intemperate and included the following:
“I informed Mr Moffat of the main reasons for me requesting the replacement of Mr MacMillan as Chairman, which are:
1.	Rude.
2.	Ignorant.
3.	Unprofessional.
4.	Discriminatory against the Claimant.
5.	Unjust against the Claimant.
6.	One of Mr McMillan’s actions is possibly illegal.
7.	Two faced.
8.	Lack of Control.” 

26.	The letter finished in these terms:
“I request the Employment Tribunals get their act together and appoint a competent Chairman. If you do not like the tone of this letter, then you should have done something before it got to this stage!” 

27.	The letter made no mention of the Claimant’s state of health.  The pre-hearing review proceeded in the absence of the claimant. 

28.	In summary, therefore, the history of the case shows that the claimant was asserting that he was employed by both respondents, that the Chairman considered that his insistence on that assertion was such that there required to be a pre-hearing review to determine who was the claimant’s employer, that the claimant telephoned the Employment Tribunal on numerous occasions, that he wrote to them on numerous occasions, that he sought to have the Chairman respond to specific questions which touched on the merits of the case and questioned the procedure that had been determined on, that the claimant did not want to attend a pre–hearing review, that on one occasion in October 2007 he stated in a letter that he would not be fit to attend a hearing, that as at 17 December he appeared to be intending to attend the hearing, that on one occasion in December 2007 he stated in a letter that his attendance at the hearing on 9 January would be subject to his medical condition, and that ultimately, he sought to have Mr MacMillan removed from the 9 January hearing but made no mention at all in his attempts to do so, of his health being such as to prevent him from attending.  Also, throughout the correspondence that I have seen, the claimant has often made serious and offensive allegations regarding the respondents (particularly the first respondents), the Chairman (now Employment Judge) and Tribunal staff. 

The Tribunal’s Judgment 
29.	In its judgment, the Tribunal refers to the history of the case and of there having been telephone and written communications between it and the claimant. At paragraph 9, it states:
“After a lengthy series of telephone calls with the secretary, when the claimant eventually announced his willingness to attend a Pre–Hearing Review, such a hearing was fixed for 9 January 2008. Parties were advised on this hearing on 28 November”.

The Tribunal goes on to explain that there were further telephone calls to the secretary and staff, and the letters of 17 and 18 December. It notes the complaints made in those letters. It adds:
“It had already been made clear to the claimant, both in telephone conversations and by letter of 30 October that at this stage the Tribunal was only dealing with the issue of the identity of the employer. It was again explained by the secretary that the Employment Judge was not prepared to correspond with the claimant on the merits of the case.” 

30.	At the hearing on 9 January, the respondents moved that the proceedings should be dismissed on the basis that the claimant had failed to appear and provided no reasonable justification for his failure to do so.  The Tribunal considered that it had little choice in the matter as no justification had been advanced.  It added, at paragraph 18:
“It is a course now open to the claimant to seek a review of this decision, certainly on the basis of Rule 34(3)(c) and potentially on other grounds. The claimant should now take advice on these matters.” 

31.	It pronounced an order in the following terms:
“The judgment of the Tribunal is that the application should be dismissed. The attention of parties is drawn to Rule 34(3(c) of the 2004 Employment Tribunals (Constitution and Rules of Procedure) Regulations.” 

32.	Both respondents made applications for expenses. At paragraph 19, the Tribunal states:
“The Employment Judge explained that he could not deal with such applications in the absence of the claimant, and the absence of any notification in terms of Rule 38. Both respondents indicated that they would be proceeding with written motions for expenses in due course.” 

33.	The claimant applied for a review in a 17 page letter dated 31 January 2008. The letter contains, again, offensive allegations of impropriety on the part of the respondents. It also accuses the Chairman of lying, of being biased and of realising that his actions were to be subject to investigation by the police and “outside agencies”.  Nothing I have seen or heard indicates to me that any such investigations have or are being carried out.   The letter provides no adequate explanation of the claimant’s failure to attend on 9 January. Plainly, the reason for his non‑attendance was that he was not prepared to, as he saw it, accede to Mr MacMilllan presiding over the hearing. 

34.	The application for review was refused. That refusal was intimated by letter dated 8 February 2008. The Secretary of the Employment Tribunals advised:
“I refer to your application for a review of the above case. I have to advise you that Employment Judge MacMillan has refused to grant a review on the following grounds.’
	The use of intemperate language amply demonstrates that the claimant intends to continue with his behaviour. No ground is advanced for the claimant’s failure to appear at the hearing.” 

The Appeal 
35.	The claimant presented his appeal over a period of almost two and half hours.  He plainly has a strong sense of grievance regarding his redundancy. He did not, unlike many of his fellow employees who entered into voluntary redundancy agreements, want his employment to be terminated.  He appears to entertain deep suspicions regarding the arrangements and relationship between the two respondents.  He continues to assert that there was some partnership between them involved in his employment.   

36.	Separately, the claimant was strongly of the view that the Tribunal, including the Chairman, should have engaged in correspondence with him regarding all the questions raised by him.

37.	The claimant sought to appeal against:
“The judgments 
(1) to allow Judge MacMillan to continue as Chairman 
(2) to hold a pre hearing 
(3) to allow a dismissal motion when one was not scheduled for the pre hearing 
(4) to dismiss the case and allow a claim for expenses.”

38.	The claimant referred firstly to the matter of expenses. Notwithstanding what was stated in the Tribunal’s judgment, he appeared to think that an award of expenses had been made against him. His ultimate position was that the Tribunal should have said that any application by the respondents for an award of expenses would be rejected. 

39.	The claimant then referred to the history of the case in accordance with the background outlined above. He did so in some detail.  He explained that he did not respond to the Tribunal’s letter of 14 November 2007 because, as he saw it, it meant that matters were left on the basis that when he was fit to attend a Tribunal hearing, he would let them know. He did not supply a medical certificate then because he was not asked for one. 

40.	Regarding paragraph 9 of the Tribunal’s judgment, he said that it was a blatant lie to suggest that he had indicated he would attend a pre‑hearing review. There was no note of any such conversation made by the Tribunal staff, in accordance with the arrangement set out in their letter of 8 August 2007.  The absence of any such note proved that the Tribunal was lying when it made that statement.  I would, at this stage, observe that I do not read the arrangement regarding notes of information provided over the telephone to have covered the entirety of the claimant’s conversations and I do not interpret it as covering a conversation about whether or not the claimant was going to attend a pre-hearing review.  The claimant also said the Chairman had directed that a pre‑hearing review be fixed at a time when he knew that the claimant was not fit and was unable to attend.  That appeared to be a reference back to the Tribunal having acknowledged in its letter of 14 November 2007, that the claimant had advised that he was not fit to attend a hearing. 

41.	Regarding the Tribunal’s letter of 28 November 2007, the claimant said that he did not provide a medical certificate because it cost £16 and if the Tribunal wanted such a certificate then it should have sent him £16. He said there was no requirement in the rules for such a certificate to be provided and no order was issued requiring him to provide one.  The Tribunal should have responded to his letter of 18 December asking it to justify asking for a certificate.  By then, there was, he said, an “atmosphere” building up and he made reference to an “old boy network” of which he was not part. 

42.	The claimant confirmed that as at 8 January he certainly did want the Employment Judge removed. That was because he had not been receiving responses to his letters, he had had no feedback from the Tribunal and there was nothing to say that a party must attend a pre‑hearing review. Further, the status quo, as the Employment Judge knew, was that he was not fit to attend. And he was still waiting for a response to his letter asking for justification for the requirement that he provide a medical certificate.  He did not, however, suggest that he said anything about his fitness to attend the hearing in the course of any of the telephone conversations that he had with the Tribunal on 8 or 9 January 2008. He did not assert that he was not in fact fit to attend the hearing on that date.  It was quite clear from the claimant’s submissions that the reason he did not attend the hearing was that he objected to Mr MacMillan presiding over it. 

43.	The claimant also relied on the respondents having made false statements, as recorded in the Tribunal’s judgment, and on him not having had notice that an application for dismissal of his claim would be made. 

44.	Both Mr Lee and Mr Murray opposed the appeal on the basis that the claimant had provided no justification for his failure to attend the hearing on 9 January. However, very properly, Mr Murray drew attention to the fact that, on one view, rule 18(5) of the Employment Tribunal rules did not cover the circumstances of the present case and if that were so, then the notification procedures under rule 19 ought to have been gone through before dismissal was granted. 

45.	The respondents pointed out that there was no appealable decision on the matter of expenses. They had both made written applications but those had been put on hold pending the outcome of the appeal.

Decision 
46.	Dealing firstly with the appeal that purports to be an appeal against an award of expenses, it must be rejected. The Tribunal made no award of expenses and made it absolutely plain in its judgment that it was not doing so. 

47.	Turning then to the holding of a pre-hearing review, the claimant did not timeously appeal the decision to fix a pre–hearing review. In any event it was, as I have explained, an appropriate procedure to adopt.  There is, accordingly, no merit in this aspect of the appeal either. 

48.	Moving then to the appeal against the Employment Judge being allowed to continue to preside, there is no appealable order in this respect.  Separately, no good grounds whatsoever have been advanced for having him prevented from hearing the case. 

49.	I turn now to the third and fourth parts of the appeal. I have considerable sympathy for the position in which the Tribunal found itself on 9 January 2008.  At the case management discussion, it had identified that there was an issue as to the identity of the claimant’s employer which arose from the claimant’s assertion that both respondents were in partnership in respect of his employment. It was entirely appropriate to regard that as an issue which required to be determined at a pre-hearing review, before the case could proceed to a merits hearing. 

50.	The Tribunal stated clearly in the case management discussion note that a pre-hearing review required to be fixed to determine the issue.  It remained the view of the Tribunal Chairman that there required to be such a hearing after he had considered the documentation that had been lodged by parties after the case management discussion. The Tribunal made that position clear to the claimant in its letter of 14 November. By that time, the Tribunal had been advised by the claimant that he was, as at 22 October 2007, unable to attend meetings in Glasgow.  Its request that the Claimant advise when he might be fit to attend was a reasonable and sensible one. That request, contained in the letter of 14 November, called for a reply. I do not accept, as was suggested by the claimant in the course of the appeal hearing, that it was obviously impossible to tell the Tribunal when he would be fit until he was actually fit. It is reasonable to enquire as to prognosis and expect an answer to that enquiry, which is what the Tribunal was doing.  When the claimant did not respond to that request, it was entirely reasonable for the Tribunal to proceed as it did in terms of its letter of 28 November, namely to fix a hearing but, bearing in mind what the claimant had advised about his fitness as at about a month earlier, put him on notice that if he was not going to be able to attend on that date to provide the appropriate medical certificate.  By proceeding in the way that it did the Tribunal was making proper efforts to progress the case whilst not ruling out the possibility that the claimant might have justification on medical grounds for a postponement of the hearing that was fixed for 9 January 2008. It would though be for the claimant to take the initiative in that event and provide the specified medical certificate. 

51.	Still looking at the circumstances by the time matters were being considered by the Tribunal on 9 January, as at 17 December, it appeared, from the terms of the claimant’s letter that he was intending to attend at the hearing.  Although the claimant made reference in his letter of 18 December to his attendance being subject to his medical condition “on the day”, there is no suggestion that he was not, as at that date, fit. In short, contrary to what was suggested by the claimant in the course of the appeal hearing, matters were not such that it could fairly be said that the Tribunal, as at 9 January, knew that the claimant was not fit to attend. Not only did they have no medical certificate before them telling them that that was the case; at best for the claimant, he had put them on notice that it was possible that he might not be fit.  Whilst in the case of a person suffering from an established medical condition making them permanently unfit to attend, duly certified by a doctor, it may be appropriate to talk in terms of a Tribunal having knowledge of a “status quo” regarding their health, this was plainly not such a case. 

52.	By 8 January the Tribunal had not received a medical certificate from the claimant nor had it received an application for the pre-hearing review to be postponed. There had been oral and written communications between the claimant and the Tribunal as outlined above.  The claimant had no right to have Employment Judge MacMillan removed from the case.  The allegations on which he based his call for that removal were, as I have observed, offensive and did not amount to a good ground in law for a judge declining jurisdiction or being removed.  I accept that the claimant had not (and has not since) provided any acceptable justification for his failure to attend on 9 January.

53.	In all the circumstances, I can understand why the respondents sought dismissal and seek in this appeal to oppose the reversal of the Tribunal’s order dismissing the claim.  On the information put before me by the claimant orally and in the large bundle of documents provided, it appears to me that he has conducted his case unreasonably since the case management hearing, and, further, that in failing to attend the hearing on 9 January 2008 without reasonable justification he can be said to have failed to actively pursue his claim.  Had the application been one for “strike out” under rule 18(7) of the Tribunal rules, I can see that there would have been ample justification for granting it. 

54.	This was not, however, an application under rule 18(7). Had it been, rule 19 notification would have been required.  The question that then arises is that of whether, in these particular circumstances, the Tribunal’s powers under rule 18(5) were wide enough to enable it to dismiss the case.  Rule 18(5) provides:
“Notwithstanding the preliminary or interim nature of a pre- hearing review, at a pre‑hearing review, the chairman may give judgment on any preliminary issue of substance relating to the proceedings. Judgments or orders made at a pre-hearing review may result in the proceedings being struck out or dismissed or otherwise determined with the result that a Hearing is no longer necessary in those proceedings.”

55.	Thus, in a straightforward unfair dismissal case, if a pre–hearing review takes place on the issue of whether or not a respondent was the claimant’s employer at the time of dismissal and it is determined that he was not, the rule 18(5) power enables the Tribunal not only to find that the respondent was not the claimant’s employer but to go on and dismiss the case as a “result of” the decision on the employer issue.  Does that mean that if the claimant does not turn up at the hearing when such an issue was to have been discussed, that the Tribunal can dismiss the case not as a result of the determination of the employer issue but simply because the claimant does not appear?  Commonsense suggests that that is how the rule should be interpreted, particularly since, if the claimant did in fact have a good reason for non appearance, his interests are protected in respect that he can apply for a review under rule 34(3)(c).  Having reflected on the matter, however, the matter is not sufficiently free from doubt to persuade me that I can conclude that the Tribunal did in fact have power to dismiss the case.  I require, accordingly, to uphold parts 3 and 4 of the appeal and remit to the Tribunal to fix a further pre‑hearing review to determine who was the claimant’s employer at the relevant time.  No doubt any respondent who wishes to seek an order under rule 18(7) at that hearing will give appropriate notice to the Tribunal so that rule 19 notification can be given in advance of the hearing. 

Disposal 
56.	As I have indicated, I will pronounce an order, upholding parts 3 and 4 of the appeal contained in the notice of appeal, set aside the order dismissing the claimant’s application and remit to the Employment Tribunal to fix a pre-hearing review for the purpose identified in the case management discussion note of 4 September 2007. The appeal will, in all other respects, be refused.