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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Balls v. Downham Market High School & College [2010] UKEAT 0343_10_1511 (15 November 2010) URL: http://www.bailii.org/uk/cases/UKEAT/2010/0343_10_1511.html Cite as: [2010] UKEAT 343_10_1511, [2010] UKEAT 0343_10_1511, [2011] IRLR 217

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APPEARANCES

 

For the Appellant	MR JAMES LADDIE (of Counsel) Instructed by: Messrs Lewis Silkin Solicitors 5 Chancery Lane Clifford's Inn London EC4A 1BL
For the Respondent	MR STEPHEN GOODFELLOW (of Counsel) Instructed by: Norfolk County Council Legal Services Martineau Lane Norwich NR 1 2DH


 


SUMMARY

UNFAIR DISMISSAL

Strike out. Whether claim had reasonable prospects of success. Whether failure to actively pursue a claim. Employment Tribunal failed to have regard to relevant law and reached conclusions both on the issue of reasonable prospects and whether Claimant had failed to actively pursue his claim which were manifestly not open to it.

Amendment. Circumstances in which it was appropriate to allow amendment of Notice of Appeal which had been drafted by the Claimant, by means of substitution of grounds drafted by counsel instructed under ELAAS scheme. Factors to be taken into account.


 


THE HONOURABLE LADY SMITH

Introduction

1. This is an appeal against the striking out of a claim by an Employment Tribunal sitting at Norwich, Employment Judge Laidler, sitting alone, dated 7 August 2009. I will carry on referring to parties as Claimant and Respondent.
2. Strike out was ordered on two grounds, namely that the claim had no reasonable prospects of success and that it had not been actively pursued.
3. Accordingly, rule 18(7) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 applied, the provisions of which confer a discretion on an Employment Tribunal to strike out a claim in various circumstances including where the claim has "no reasonable prospects of success" and where it "has not been actively pursued."

The power of strike out

4. To state the obvious, if a claimant's claim is struck out, that is an end of it. He cannot take it any further forward. From an employee claimant's perspective, his employer has "won" without there ever having been a hearing on the merits of his claim. The chances of him being left with a distinct feeling of dissatisfaction must be high. If his claim had proceeded to a hearing on the merits, it might have been shown to be well founded and he may feel, whatever the circumstances, that he has been deprived of a fair chance to achieve that. It is for such reasons that strike out is often referred to as a draconian power. It is. There are, of course, cases where fairness as between parties and the proper regulation of access to Employment Tribunals justify the use of this important weapon in an Employment Judge's available armoury but its application must be very carefully considered and the facts of the particular case properly analysed and understood before any decision is reached.
5. I would refer to the discussion of the use of the power to strike out for failure to actively pursue a claim in the case of Rolls Royce Plc v Riddle [2008] IRLR 873, in particular at paragraph 18 – 19:

"Where a motion is made under this rule, the Tribunal requires, accordingly, to begin by asking itself whether the claimant has failed to actively pursue his claim. It would not usually be difficult to conclude that where a claimant has failed to appear at a full hearing of which he has been notified, that amounts to a failure to actively pursue his claim. Then, the Tribunal requires to ask itself whether, taking account of the whole circumstances, it ought to exercise its discretion so as to strike out the claim. The rule provides for a general discretion to strike out if the tribunal is satisfied that there has been a failure to actively pursue a claim.

19. The rule is not drafted so as to fetter the discretion that is conferred by any particular considerations. However, as with all exercises of discretion, it will be important to take account of the whole facts and circumstances including the fact that strike out is the most serious of sanctions. That being so, as commented in Harvey, it is usually considered appropriate to take account of the principles laid down by the High Court in England prior to the introduction of the current Civil Procedure Rules. Those show an expectation that cases of failure to actively pursue a claim will fall into one of two categories. The first of these is where there has been 'intentional and contumelious' default by the claimant and the second is where there has been inordinate and inexcusable delay such as to give rise to a substantial risk that a fair trial would not be possible or there would be serious prejudice to the respondent: Birkett v James [1977] 3 WLR 38. The Birkett principles were applied in the Industrial Tribunal context in the case of Executors of Evans v Metropolitan Police Authority [1992] IRLR 570."

6. Where strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success, the structure of the exercise that the tribunal has to carry out is the same; the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word "no" because it shows that the test is not whether the claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.
7. I would add that it seems only proper that the Employment Tribunal should have regard not only to material specifically relied on by parties but to the Employment Tribunal file. There may, as in the present case, be correspondence or other documentation which contains material that is relevant to the issue of whether it can be concluded that the claim has no reasonable prospects of success. There may be material which assists in determining whether it is fair to strike out the claim. It goes without saying that if there is relevant material on file and it is not referred to by parties, the Employment Judge should draw their attention to it so that they have the opportunity to make submissions regarding it but that, of course, is simply part of a Judge's normal duty to act judicially.

Background

8. The following background is evident from the documents that were before the Employment Judge. The details are important, hence the extent to which I quote from correspondence.
9. The Respondent is a school and the Claimant was employed by it as a groundsman until 30 November 2006 when he was summarily dismissed for gross misconduct. His wife was the bursar, was dismissed at the same time and, in October 2008, she pleaded guilty to two counts of theft from the Respondent in the sums of £85,000 and £30,000. She was sentenced to a term of imprisonment of 18 months.
10. The police carried out investigations regarding the Claimant but he was not charged with any offence. The Respondent, in the form ET3 lodged by them in response to the Claimant's claim for unfair dismissal, allege that he, in common with his wife, had misappropriated money belonging to them. That is an inference that they seek to draw from the fact (which is not disputed) that two cheques for money not due to the Claimant were paid into his bank account and sums paid by way of a fuel card belonging to the Respondent were used to fuel the Claimant's and his wife's private vehicles. It is not suggested that the Claimant paid the money into his bank account nor is it said that he used the fuel card. The allegation appears to be that these were matters that occurred in the context of the thefts committed by the Claimant's wife and the Respondent infers some responsibility on his part.
11. The Claimant presented a claim for unfair dismissal to the Employment Tribunal at Bury St Edmunds on 22 February 2007. In paragraph 10 of his claim form, under the heading "Other Information" he stated:

"I have submitted my claim within the specified time scale but feel that it is not prudent to pursue the matter further until after the 5^th April 2007 when I will know whether the allegations made against me have been disproved. My solicitor involved attended the meeting with the police on 18.12.06 and quashed (sic) all their evidence, and there is no further meeting with my solicitor and police until 5^th April 2007. My previous employer has been vindictive since an altercation in October 2006 when I stood up to his demands and since then things have escalated to the current situation. I disproved the allegations but he took no notice of them whatsoever and the appeal was timed extremely quickly to ensure he had tied everything up by the end of the school term and on the exact date when the police arrived to pursue this matter to ensure I was unable to even attend the appeal meeting. I do not wish to antagonize this situation until after my return to the police on 5.04.07 but need to submit my claim within the timescale laid down. Your co-operation at this time would be gratefully appreciated as I am under an extreme amount of stress, in addition to financial difficulty through loss of job and trying to regain new employment. At present my solicitor is unable to deal with the employment issue and has recommended others who we are contacting and I will let you know as soon as possible our nominated solicitor for our employment issues."

12. He also presented a claim for unlawful deduction from wages, on 27 February 2007. In that claim he specified that he alleged he was owed payment for 330 extra hours worked (at £7.18 per hour) and holiday pay for 25.5 days (four hours per day at £7.18 per day). No form ET3 appears to have been lodged in respect of the claim for unlawful deduction from wages. At the appeal hearing before me, Mr Goodfellow stated that no such form could be traced and it was not suggested that any such ET3 was before the Employment Judge at the hearing on the application for strike out.
13. The Claimant's wife presented a timeous claim for unfair dismissal. The Respondent sought conjunction of the two claims. The Claimant objected. His objections were not successful and in April 2007, the claims were conjoined.
14. Between April and August 2007, the Claimant sought and obtained postponements of a case management discussion as he was still being investigated by the police, they had removed papers and his computer and he was trying to obtain legal representation. The problems he was experiencing in attending to the preparation of his case by reason of the fact that there was an ongoing criminal investigation against him was a regular theme in his applications for postponements.
15. On 4 September 2007, the proceedings were stayed pending the outcome of the ongoing criminal investigation against the Claimant.
16. Shortly before 28 May 2008, the criminal investigation that had been carried out in respect of the Claimant was discontinued. No criminal charges were ever brought against him; a letter from the Claimant to the Employment Tribunal dated 5 June 2008 states:

"Regarding my current situation the investigation has been dropped against me so therefore I have no case to answer."

17. In a letter to the Employment Tribunal dated 2 May 2009, the Claimant, similarly, stated:

"…no criminal charges of any sort have been brought against me..."

18. Although, in a letter from the Respondent to the Employment Tribunal dated 30 January 2009, they state: "The criminal charges against Mr Balls were dismissed in June last year", that is not correct. The position was, rather, as stated by the Claimant.
19. In October 2008, the Claimant's wife pleaded guilty to two charges of theft as above noted.
20. In his letter of 5 June 2008, the Claimant made it plain that he was keen to get his claim going again. Having explained that the investigation had been dropped, he stated:

"I presume that because of this fact my Tribunal Case no longer remains stayed! I would be appreciated (sic) if you would contact me back at your convenience to indicate the next phase that the Tribunal wishes to take in the Tribunal Proceedings...

I am available at short notice…"

21. As he received no reply from the Employment Tribunal to that letter he wrote again on 8 July 2008. He stated:

"I understand you have exchanged correspondence with the other party but this does not appear to be moving the matter forward.

I am anxious that the end of term for the school is approaching which is obviously a ploy to delay the matter further.

Please can you provide an update of details and timetable for resolving this issue? Also, please can you provide an answer in writing in your reply as to the reasons for the extended delay..."

22. By letter dated 14 July 2008, the Employment Tribunal replied stating:

"These cases will remain stayed until the conclusion of the police investigation is known in the case of Mrs J Balls."

23. By letter dated 28 July 2008, the Claimant expressed his dissatisfaction with that outcome. He stated:

"...I cannot see why my cases should not go ahead."

24. The Employment Tribunal wrote to the Claimant by letter dated 1 August 2008 giving further reasons why the Claimant's claims were to remain stayed. They stated:

"Very serious allegations were made against your wife by the Respondent and it is plain that Judge Mitchell gave much thought before, on 4 September 2007, deciding to consolidate both claims to be heard together. It is quite obvious that the Respondent took the view (but it is for the Employment Tribunal to decide) that your dismissal and that of your wife arose from the same facts and the same series of incidents that will be, of course, for the Employment Tribunal to decide in due course. If the proposed criminal charges against your wife come to Court then Judge Cole regards it as more appropriate for the Employment Tribunal claim to await the outcome of the criminal trial. This will also avoid any difficulties for witnesses who may give evidence to the criminal court."

25. By letter dated 14 October 2008, the Claimant wrote to the Employment Tribunal and stated:

"In conjunction with the letter that I sent the Tribunal on the 28^th July 2008 and to the Tribunals subsequent ruling I can confirm that the matter that has kept my case to remain stayed has now been resolved to enable my claim to continue."

and he asked the Tribunal to respond within 7 days acknowledging that his claims should be continued without delay.

26. The Employment Tribunal replied by letter dated 20 October 2008. They stated:

"Your letter of 14 October 2008 is not clear. Mrs Balls has not contacted the Tribunal to withdraw her case. Why do you say "the matter that has kept my case stayed has now been resolved?'"

27. The Claimant did not respond until he received a further letter from the Employment Tribunal dated 19 January 2009 headed "REQUEST FOR INFORMATION Employment Tribunal Rules of Procedure 2004" directing him to write to them within 7 days to

"inform us of the current position in this case."

and warning him:

"In default of a reply the claim will be struck out as not actively pursued."

28. I pause to observe that there is no indication in the papers of the stay having been lifted at that stage. Rather, the impression is that the stay remained very much in place albeit that it would probably have to be accepted that it was impliedly lifted when the pre hearing review to consider the issue of strike out went ahead.
29. By letter dated 20 January 2009 to the Employment Tribunal from the Claimant and his wife, the Tribunal was clearly advised:

"…we will be continuing with our claims…"

and

"In no way have or has any decision been made to cancel these claims."

and there is reference to the claims being pursued through named solicitors who would be sending further paperwork in due course.

30. That did not, however, satisfy the Employment Tribunal and they wrote to the Claimant and his wife by letter dated 23 January 2009 stating:

"The claimant's letter does not provide an adequate explanation nor does it answer our letter dated 20 October (further copy enclosed). Unless this matter is explained satisfactorily there may need to be a pre – hearing review to consider whether the claims should be struck out."

31. That letter was copied to the Respondent who replied in the letter of 30 January 2009 to which I have already referred. In addition to the comment quoted above, they provided details of the Claimant's wife's plea of guilty to theft and of her sentence. They also advised that, so far as the Claimant's named solicitors were concerned, they had spoken on the telephone to someone at that firm who had told them that he had no "formal" instructions in relation to the Employment Tribunal claim.
32. They end their letter of 30 January as follows:

"In the circumstances I would respectfully request that the Tribunal list these matters of its own motion for a Pre- Hearing Review to consider whether these claims should be struck out on the basis that none of the claims have any reasonable prospect of success and or in the alternative that the claims should be struck out for a failure by both parties to actively and properly pursue the claims."

33. That letter from the Respondent was copied to the Claimant under cover of a letter from the Employment Tribunal of 3 February 2009 in which the Claimant was advised that:

"Employment Judge Cole has commented that a pre-hearing review seems sensible, but your observations, if any, are invited within 7 days of the date of this letter."

34. That was the background against which a pre-hearing review was fixed, on 13 February 2009, to consider whether the claim should be struck out. It is not clear whether it was fixed on the basis that the issue was being raised by the Tribunal of its own motion, as the Respondent had invited it to do, or, as would appear to have been the more appropriate course of action, on the basis that the strike out application was being made at the instance of the Respondent. Whilst, on one view, it may not matter, the difference could be important if any issue arises as to onus.
35. The Claimant was advised that the PHR would take place on 13 May 2009. He sent in written submissions by letter dated 2 May 2009. In that letter he stated:

"I will be unable to attend due to my current mental health and depression, which can be substantiated by a doctor's letter and certificate should this be required."

36. His submissions criticised the Respondent for having delayed his claims. In addition to the statement that no criminal charges had been brought against him, to which I refer above, he plainly sought to make it clear that his position was that he was entirely innocent of the allegations made by the Respondent against him:

"...which they have admitted to their error."

37. He refers to salary which he considers he is owed and adds:

"In addition, the letter from the Head at the School confirms I am owed salary for additional work undertaken for which he has treated me differently to other employees."

and on the second page of his letter he explains:

"I have received a letter from the Head at the School admitting that I was treated unfairly and differently to other staff, and therefore, I have been discriminated against by the School and treated unfairly in comparison with other School and Council employees."

38. The Employment Tribunal did not revert to him in connection with that letter. He was not asked to provide any medical certificate.

The PHR

39. The Claimant did not attend the PHR. The heading of the Employment Tribunal's judgment states:

"Representation

Claimants: For Mr T Balls – written representations."

The respondent was represented by counsel. In her judgment, the Employment Judge states:

"14. The Respondents have made representations at this hearing that the claims be struck out, with regard to Mrs Balls in the light of her conviction and with regard to Mr Balls, again in the light of the conviction, that his claim of unfair dismissal has no reasonable prospect of success, and, with regard to the wages claim, that it likewise has no reasonable prospect on the basis that the contract that the Claimant entered into was for 20 hours a week on a fixed wage, even though it was agreed between parties that the hours might vary."

40. The Employment Judge does not refer to any submission being made by the Respondent's counsel that the Claimant had failed actively to pursue his claim.

The Employment Tribunal's judgment

41. The judgment is a short one. Brevity can, of course, be commendable but not if it is at the expense of the essentials or accuracy. Significant absences in this judgment are the lack of any reference to rule 18, to relevant authority as to its application, to relevant authority on the issue of failure in the active pursuit of litigation, to the issues raised in the Claimant's forms ET1 and the Respondent's sole ET3, to the correspondence between the Claimant and the Employment Tribunal to which I have referred above and to the submissions contained in the Claimant's letter of 2 May 2009. An obvious error is that the Employment Judge states, at paragraph 3:

"Criminal charges against Mr Balls were dismissed in June 2008."

which, whilst that is of course the way that the Respondent put it in its letter of 30 January 2009, is not what the Claimant told the Employment Tribunal, as is evident from a reading of his letters, as above. It is an unfortunate error since it gives the impression that the Employment Judge has commenced her considerations with a more negative view of the Claimant than was justified and, further, gives the impression that she has been less than careful in her assessment of the material before her.

42. The Employment Judge found, at paragraph 15, that there were no reasonable prospects of the Claimant's wife succeeding in her claim, given her conviction – even if it were to be found that she was unfairly dismissed, there would be no award of compensation once a Polkey deduction was applied. She then deals with the Claimant's unfair dismissal claim at paragraphs 16 to 18 where she states:

"16. With regard to Mr Balls' unfair dismissal claim, I am likewise satisfied that the claim should be dismissed as having no reasonable prospects of success. Even though criminal charges have been dropped, the test in the Employment Tribunal is quite different and the employer does not have to show guilt or otherwise but satisfy the test in British Home Stores v Burchell [1980] ICR 303 and satisfy the Tribunal that it acted fairly in all the circumstances. As stated in relation to Mrs Balls, even if there were any procedural failings, it is more likely than not that there would still be no award of compensation in the light of all the circumstances in the case. I am satisfied therefore that the claim should be dismissed as having no reasonable prospects of success.

17. Further I am also satisfied it should be struck out on the basis that it has not been actively pursued. Mr Balls has been writing to the Tribunal since October 2008, stating that he was instructing solicitors who were proceeding with the claims but that has not in fact been the case. It also appears that those solicitors are not instructed and therefore the information given by him cannot be relied upon. A strike-out warning has been given and he has been well aware that that was being considered at this hearing.

18. I have taken note of his letter of 2 May 2009 but that does not assist the tribunal. No medical evidence was provided as to why Mr Balls could not attend this hearing. Indeed he did not seek a postponement of it but asked that his letter be taken into account. The letter does not give the tribunal any details as to how the claim is to be pursued. It merely restates the Claimant's position that his dismissal was unfair."

43. The Employment Judge then turns to the Claimant's claim for unpaid wages and states, at paragraph 19:

"I am also satisfied that that should be struck out as having no reasonable prospects of success. I am satisfied that the position as outlined by the Respondents is likely to be established at any full Hearing and that the Claimant has no reasonable prospects of demonstrating that monies in respect of wages are due to him. In the alternative, again this claim has not been actively pursued. No steps have been taken by the Claimant to pursue it and indeed it could have been pursued by him completely independently of the other claims. He has, however, chosen not to do so."

Notice of Appeal

44. The Claimant lodged a Notice of Appeal which he had drafted. It referred to a number of matters including that the judgment was made in his absence due to ill health, that all his allegations that he was unfairly treated had been totally disregarded, that he had new evidence from his GP regarding his illness, that under Article 6, he was entitled to a fair trial, that the Tribunal's decision amounted to punishing him for a crime he did not commit, that he was treated differently to other employees, and that the Employment Tribunal was biased. The Notice of Appeal was rejected on the sift, as he was advised by letter dated 5 February 2010.
45. At a hearing under rule 3(10) on 7 July 2010, the Claimant was represented by Mr James Laddie, of counsel, who appeared under the ELAAS scheme. It is a tribute to the quality and value of that scheme that he prepared and submitted to this Tribunal, for that hearing, a clear and cogent skeleton argument in support of the rule 3(10) application and, on the basis of it and his oral submissions, Underhill P was persuaded that there were in fact reasonable grounds of appeal. The case was allowed through to a full hearing. Paragraph 4 of the order for the full hearing provided:

"The Skeleton Argument of Mr James Laddie prepared for the Rule 3(10) application hearing is to stand in substitution as an Amended Notice of Appeal: the Respondents to have liberty to apply on paper within 14 days of the sealed date of this Order on notice to the other parties to vary or discharge the Order in this paragraph and/or for consequential directions as to the hearing or disposal of the appeal."

46. Notice of application to discharge Underhill P's order was lodged within fourteen days, although their skeleton argument for the appeal hearing was amended only forty eight hours prior to the hearing to add an application to discharge paragraph 4.
47. I heard argument at the outset of the appeal hearing in respect of the Respondent's application to discharge paragraph 4 of the order. Although no timeous notice of the application had been given, Mr Laddie did not take issue in that regard. Mr Goodfellow's submission was that the amendment of the original Notice of Appeal came late in the day against a background of earlier delay by the Claimant who had indicated that he was instructing a solicitor. He very fairly accepted, however, that the Claimant did not in fact have legal representation until Mr Laddie was instructed under the ELAAS scheme and that had not occurred until the day before the rule 3(10) hearing. He did not suggest that the Respondent was prejudiced by the amendment of the Notice of Appeal.
48. Mr Laddie submitted that the Respondent's application should be refused and I agreed that that was the appropriate course of action, noting that the Claimant's own draft had captured the essential elements of the case as set out in the skeleton. Further, I had no doubt, particularly since what was at issue was a decision to strike out the Claimant's claims and the Respondent was not pointing to any prejudice, that it was in accordance with the overriding objective that I refuse Mr Goodfellow's application. It also seemed to me that to do otherwise would not have been in accordance with the Claimant's Article 6 right to a fair trial.

The appeal

49. For the Claimant, Mr Laddie submitted that the Tribunal had erred in law both in finding that the Claimant's claims had no reasonable prospects of success and in finding that he had failed actively to pursue his claims.
50. Mr Goodfellow conceded that, given the absence of any form ET3 in relation to the wages claim, it could not be said that it had no reasonable prospects of success.
51. Mr Laddie submitted that the Employment Judge's reasoning failed to disclose any evidence that she had understood the correct legal test, that she had applied it or that she had properly understood the factual background. He referred to English v Emery Reimbold & Strick Ltd [2003] IRLR 710, recognising that it was not necessary for a judgment to spell out every aspect of the reasoning. This, however, was, he submitted one of the cases where it was not clear how or why the Claimant had lost and the English test was not met. There was no indication of her applying the proper test to decide on the issue of reasonable prospects. There was no indication of her appreciating that the Claimant's claim was separate from his wife's, that he had worked in a different job which did not give him any access to school funds, on a different site, at a wholly different level of responsibility and had never been charged with any offence. As to her reference to Burchell, it was materially inaccurate. The case was not authority for an employer being required to satisfy the Tribunal that it acted fairly in all the circumstances. There was no indication of her being aware that the test was more demanding and sophisticated and that it was not enough to show genuine belief in the alleged misconduct. When it came to the wages claim, her approach was staggering. There was not a scrap of evidence before her to enable her to strike it out whereas there was a detailed claim in the Claimant's ET1. Astonishingly, she criticised the Claimant for having failed to pursue his wages claim separately yet that was exactly what he had done. Whilst he recognized that the Respondent no longer suggested that there were no reasonable prospects in respect of the Claimant's wages claim (although they had done so at the PHR), the Employment Judge's approach to that issue was symptomatic of her whole approach. Overall, the judgment "was a mess".
52. So far as delay was concerned, the Respondent's case was that there had been delay which could be categorised as being in the first of the Birkett v James categories, namely intentional and contumelious default. Mr Laddie went through the correspondence to which I have referred and submitted that contrary to what was found by the Employment Judge, far from deliberately delaying matters, the Claimant had been trying to get matters moving. On no view could he be accused of culpable delay. He had never failed to comply with an order of the Tribunal. It had never been suggested that he was guilty of an abuse of process.
53. Mr Laddie submitted that, overall, a serious injustice had occurred, the Tribunal's judgment should be quashed and the claims remitted to a fresh Employment Tribunal.
54. For the Respondent, Mr Goodfellow submitted that the Employment Judge's judgment, whilst not entirely clear in parts, gave sufficient explanation of her reasons for finding as she did. She was entitled to take account of the fact of the Claimant's wife plea of guilty to theft, of the fact that the sums misappropriated included sums of money that were paid into his bank account and the Claimant had not suggested that he was unaware of that happening. He also suggested that the Claimant had not dissociated himself from his wife's actions. The test that the Employment Judge had to apply was as explained by the Court of Appeal in the case of ED&F Man Liquid Products Ltd v Patel [2003] CP Rep 51, founding on the reference to the need for the case to "carry some degree of conviction" (per Potter LJ at paragraph 6) and the Employment Judge was entitled to decide that it had not been met.
55. Regarding delay, Mr Goodfellow submitted that the correspondence showed that the Claimant was not being frank. It would, he submitted, have been apparent that the Claimant had been written to in October 2008 and had not responded. The Employment Judge was entitled to decide that he had failed to progress his claim.

Discussion and Decision

56. I have already alluded to criticisms that I consider fall to be made of this judgment and, having considered counsels' submissions, it seems to me that all of Mr Laddie's criticisms were well founded. The Employment Judge's approach is wholly flawed.
57. Dealing firstly with the facts, she was not entitled to proceed on the basis that the Claimant had been charged with an offence at any time or on the basis that he had not instructed solicitors (putting matters at their highest, the Respondent's letter of 30 January 2009 indicated that the identified solicitor had not received "formal" instructions), nor on the basis that as from October 2008, he had been repeatedly stating that he was instructing solicitors, that being the impression she gives in paragraph 17 of her judgment (there was but a single letter from the Claimant to the Employment Tribunal after October 2008) or on the basis that he had not raised a separate wages claim or on the basis that he had not taken steps to pursue it.
58. Turning then to the Employment Judge's characterisation of matters, there is a strong sense of her approach being that the Claimant must be "tarred with the same brush" as his wife. That emerges from her reference to charges against the Claimant having been dropped, a matter which was of no apparent relevance, from her reference to being "likewise" satisfied that his claim had no reasonable prospects, and from her stating that as with his wife's case, even if there were procedural failings, it was likely that there would be no award of compensation. She gives no reason for that conclusion other than, by inference, his wife's guilt. It was in fact important that the Employment Judge ensure that the fact of conjunction of the claims did not cloud her vision so far as the Claimant's quite separate claims were concerned. He was entitled to have his claims considered on their own merits and the Employment Judge needed to be careful to avoid making any assumptions based on the fact of his wife having committed theft. Unfortunately, on any reading of her judgment, it can only be concluded that she failed to do so.
59. Further, if the Employment Judge had had regard to the history of the case she would have seen that the Claimant had opposed the joining of the claims and had been at pains to stress that he was innocent of any wrongdoing. She could and should also have observed the separate nature of the Claimant's and his wife's jobs and would have been alive to the risk of treating both persons' claims as one and the same when they simply were not.
60. Moving to the criticisms of the Claimant for causing delay, on any sensible reading of the correspondence it can only be concluded that it is not fair to criticise him in either the way that the Employment Judge did or as the Respondent did in its letter of 30 January 2009 yet that is what the Employment Judge appears to have done. The plain picture that emerges is that the Claimant did not want his claims to be stayed or joined with his wife's but had to accept that happening, that the Employment Tribunal were well aware that matters were awaiting the outcome of police investigations (that was the reason for the stay), that as soon as he was free of police investigations, he made it plain to them that he wanted to make progress and that thereafter, he was faced with a number of singularly unhelpful, apparently enigmatic letters from the Tribunal which he was then criticised for not dealing with. I cannot understand the difficulty that the Tribunal apparently had with understanding the meaning and import of the Claimant's letter of 14 October particularly since they were well aware of the background. Their response on 20 October was unnecessarily combative, as was their letter of 19 January 2009. As for asking a Claimant to tell them what the current position in the case was, that was and should have been obvious to them; the claims were stayed and the Claimant was asking to make progress with them. What more of an explanation did they require? Any ordinary citizen would, by this stage, have been entitled to feel enormously frustrated and it is not surprising that the letter from the Claimant and his wife of 20 January was in firm and plain terms and sought to make it clear that they were indeed going ahead with their claims. That that should have been followed with a letter telling the Claimant that his letter did not provide an adequate explanation and that he was at risk of having his claim struck out was quite wrong. What did the Tribunal want to have explained? How was the Claimant supposed to understand what precisely was their question? And why, when they had been wholly unclear in their responses to the Claimant, should he have been at risk of his claim being struck out? To say that these matters were mishandled by the Tribunal is an understatement. What, however, for present purposes is important is that the Employment Judge should have appreciated that that was the background and on no view could it support the conclusion that the Claimant had not actively pursued his claim.
61. In all the circumstances, I have no difficulty in upholding this appeal.

Disposal

62. I will pronounce an order upholding the appeal and remitting the Claimant's claims to a freshly constituted Employment Tribunal to proceed. It would plainly be inappropriate that it be remitted to the same Tribunal, as was accepted by Mr Goodfellow.