Appeal Nos. UKEAT/0019/12/RN
UKEAT/0020/12/RN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 21 May 2012

Before
HIS HONOUR JUDGE SEROTA QC
MR D NORMAN
MR S YEBOAH

E P E M LTD	APPELLANT

MRS H R HUGGINS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR LAUREN GODFREY
(of Counsel)
Instructed by:
Michael Foster Solicitors
Lacuna Place
Havelock Road
Hastings
TN34 1BG
	
For the Respondent	MR DAVID R WHITE
(of Counsel)
Instructed by:
Irwin Mitchell LLP Solicitors
Imperial House
31 Temple Street
Birmingham
B2 5DB

SUMMARY
UNFAIR DISMISSAL
Constructive dismissal
Compensation

Respondent’s ET3 struck out for failure to comply with an unless order.  No judgment entered against the Respondent.  Employment Tribunal refused to permit Respondent to have order reviewed but applied rule 34 of ET Rules of Procedure.  Also, applying rule 9 Employment Tribunal refused to permit Respondent to participate in remedy hearing; Employment Tribunal’s attention not drawn to North Tyneside Primary Care Trust v Aynsley and Ors [2009] ICR 1333 nor D & H Travel Ltd v Foster [2006] ICR 1537.  Employment Tribunal went on to hear the Claimant’s claim for unfair dismissal unopposed and enter judgment in her favour.

The effect of a strike‑out of an ET3 (following Underhill J in Aynsley) was to be equated with the case of failure to present an ET3 within time, or of rejection of the ET3 by the Employment Tribunal so that rule 9 of ET Rules of Procedure applied and the Respondent was not permitted to participate further; however this did not apply in appropriate circumstances to participating in the remedy hearing; Foster applied.

The Respondent might also apply for a review of the strike‑out under rule 10 of the ET Rules of Procedure.  The principles applicable to such an application were similar to those relating to applications under rule 34.

On the particular facts of the case, the appeal relating to the application to review the judgment of the Employment Tribunal was refused but the application to participate in the remedy hearing was remitted for further consideration by a new constitution of the Employment Tribunal.

HIS HONOUR JUDGE SEROTA QC
Introduction
1.	This is the full hearing of two appeals by the Respondent from decisions of the Employment Tribunal sitting at Ashford.  Firstly, there was a decision of 25 May 2011 by Employment Judge Nash, sitting with lay members, in which she refused to extend the time under rule 45(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 for the Respondent to apply to review a decision we shall come to in due course.  This was referred to a full hearing by HHJ Peter Clark on 6 July 2011.  There is a further Judgment, of 1 June 2011; a full hearing took place before Employment Judge Nash, again with lay members.  She refused on that occasion to permit the Respondent’s solicitor to participate in the proceedings in any way, went on to find that the Claimant had been unfairly dismissed and had not been given a contract of employment, and directed the payment of compensation.  This was referred to a full hearing by HHJ Peter Clark on 10 January 2012.

Factual background
2.	The factual background is this.  The Respondent is a small company that supplies medical and surgical services at several locations in Kent.  The principal of the company, and the director, is Mr Shiell, who is a surgeon.  The Claimant worked for the Respondent as a receptionist.  The Claimant’s case was that her duties, she found, were gradually being transferred to another employee.  There was a breakdown in relations between her and Mr Shiell; I set this out very briefly.  She was told to transfer to a less convenient location, her working hours were reduced, a grievance she presented was not adequately dealt with, and, as a consequence of these various matters, she resigned, claiming to have been constructively dismissed, and the effective date of termination of her employment was 19 August 2010.  It is right to say that Mr Shiell denied that he had in any way treated the Claimant on behalf of the Respondent in such a way as to amount to a repudiatory breach of her contract of employment.

Procedural background
3.	I now turn to the relevant procedural history.  On 12 July 2010 Mr Shiell booked a holiday, “Springtime in Fjord‑land”, departing some date in May 2011.  The Claimant lodged her ET1 on 17 November 2010; the ET3 was lodged on 20 December 2010.  The ET3, as is usual, contains a rider, setting out in detail the grounds of opposition to the Claimant’s claim.  Part of this was in the handwriting of Mr Shiell – and, as has been pointed out, effectively, on his behalf by Mr Godfrey today, he is a doctor, after all – and it is not for me to criticise his handwriting, but the Employment Tribunal evidently found that part of the rider that was in his manuscript only partly legible.  On 10 February, of its own motion, the Employment Tribunal directed the Respondent to file a typewritten copy of the manuscript part of the ET3 within 14 days of the date of the order.  So far as I can tell, no complaint had been received from the Claimant that she was unable to ascertain what the case against her was by reason of any illegibility in the rider to the ET3; the order was made on its own motion by the Employment Tribunal.

4.	On 16 February 2011 the Employment Tribunal gave notice of the final hearing, which was to take place on 3 May 2011, and I believe directions were given on that occasion.  On 21 February Mr Shiell wrote to the Employment Tribunal and solicitors for the Claimant, Irwin Mitchell, that he would be unable to attend the final hearing on 3 May as he had a prior holiday booked.  On 28 February 2011 Mr Shiell wrote to the Employment Tribunal and repeated the request, and I believe on that occasion supplied to the Employment Tribunal the confirmation of his booking.  On 7 March 2011 there was an email from his travel agent confirming the booking but not saying when he was booked.  On 10 March there was an order of the Employment Tribunal, which was sent on 14 March and received by the Respondent on 15 March.  Employment Judge Vowles refused to adjourn the case; she pointed out that the email of 7 March had not said when the booking was made, and also made an unless order.  The unless order provided that if the order was not complied with within seven days of the date of the order, the claim would be struck out without further consideration without the need to give any notice under rule 19 or to hold a Pre‑Hearing Review.  The Respondent was informed of a right to apply to the Employment Tribunal to carry on the proceedings under rule 10(4) and also rights under rules 11 and 12.

5.	Pausing here for one moment, if one looks at the order of 10 March, it does not identify which part of the order that had previously been made was subject to the unless order.  There were, as I have said, other directions made on that occasion, including disclosure and provision by the Claimant of a schedule of loss.  These were required to be completed by 1 March.  There was also, I note, a requirement to file witness statements, which were to be lodged not later than 14 days before the hearing, which, as I have said, was fixed for 3 May.  I am told, and there is no evidence of this, although it is an assertion that has been made by the Respondent, that both the Respondent and the Respondent’s solicitors assumed that the unless order referred to the directions rather than the filing of a typed transcript of the manuscript in the rider to the ET3.

6.	On 22 March 2011 the ET3 was struck out for non‑compliance with the unless order.  The non‑compliance, one assumes, was in relation to the failure to lodge the typed transcript.  On 1 April the Employment Tribunal notified the parties that the ET3 had been struck out.  On 8 April the Respondent lodged a Notice of Appeal in relation to the refusal of the adjournment.  A jury point was made by Mr Godfrey that this document was in the same manuscript as the rider to the ET3 and that the Employment Appeal Tribunal had no difficulty in deciphering it.  As I have said, that is a jury point, and it does not really take matters any further, but as it was such a nice point, I thought it appropriate to mention it in this Judgment.

7.	On 27 April 2011, the Employment Tribunal recorded, the Respondent sent his witness statements to the Tribunal.  Those witness statements are not in our bundle; neither Mr Godfrey nor Mr White, who appears on behalf of the Claimant, have seen them.  Those witness statements are therefore something of a mystery, but in the light of the clear statement by the Employment Tribunal we must assume that they were lodged with the Employment Tribunal.  On 29 April 2011 the Respondent, as he was away in “Fjord‑land”, instructed his solicitors, and they wrote to the Employment Tribunal a letter, which we have at page 89 of our bundle.  In the letter it is said:

“Our client’s director has had been exercised by the problem of obtaining an adjournment of the hearing that was fixed for this coming Tuesday and unfortunately in consequence had failed to deal with substantive issues, including compliance with the order for directions and in particular the unless order that was made on 16 February, and which now means that the respondent is ‘struck out’.  We are instructed nonetheless to attend the hearing this coming Tuesday, on our client’s behalf, and to seek leave of the Tribunal to at the very least, question and cross‑examine the Claimant’s evidence.
It is now believed that unless, at the very minimum that is possible then a fair trial cannot be achieved.”

8.	The letter went on to suggest:

“[…] the current procedural position was that the ‘striking out’ of the ET3 is not the same as entering judgment by default.  There is no judgment at present and it is for the claimant to prove her complaint of unfair constructive dismissal.”

9.	It then goes on to say that the Employment Tribunal must be satisfied on the facts:

“[…] as it is otherwise impossible for the proper considerations to be given as to whether her allegation that the employer was responsible for the ‘breach of trust and confidence’ amounts to constructive dismissal […].”

10.	They add that one way that could be achieved was to permit the cross‑examination of the Claimant; that was the first request.  However, they added:

“[…] the Tribunal need to know why we think it important and we set out hereunder the issues that we would suggest the Tribunal would need to address, either by:
(a) We cross examining; or
(b) The Tribunal of its own volition asking the pertinent questions.”

11.	The letter then sets out a number of matters that the Respondent would wish the Claimant to be questioned about.  These matters seem to go to the issue of constructive dismissal, but also of course they are relevant to the issue of remedy, in that issues as to contribution and a Polkey deduction (Polkey v A E Dayton Services Ltd [1987] IRLR 503) might apply.  The letter also pointed out that there had to be some evidence of the Claimant’s loss.  Although the Claimant at some point in time, and we do not know when, produced a schedule of loss and a witness statement, the witness statement was only made available to the Employment Tribunal on the day of the hearing, and it was never made available to the Respondent, nor was the schedule of loss.  We do not believe that they have been supplied as yet.  In conclusion, say the solicitors:

“[…] the respondent has been ‘punished’ through failure to comply with the order of the Tribunal, the respondent is not aware of the claimant having complied with the order of directions in respect of the production of documents or more especially a schedule of loss and would ask the Tribunal to take that into account as to whether or not it is just and equitable for the claimant’s case to proceed when the claimant has also, it would seem, failed to comply with orders of the Tribunal.”

12.	We note, incidentally, that the Respondent’s solicitors, Michael Foster Solicitors, have their office in the wholly appropriately named Lacuna Place in Hastings.  The letter that we have just referred to makes no specific reference to the rules, although it clearly expresses the desire on the part of the Respondent to participate in the hearing at least to the extent of cross‑examining the Claimant.

13.	On 28 April 2011 HHJ McMullen QC disposed of the application to appeal against the refusal to adjourn the Employment Tribunal’s proceedings under rule 3(7) of the Employment Appeal Tribunal Rules.  On 3 May the matter came before the Employment Tribunal.  The Employment Tribunal did not adjourn the matters, nor would it permit the Respondent’s solicitor to participate in the proceedings, those relating to unfair dismissal or those relating to remedy in any way.  The Employment Tribunal suggested that it would deal with the letter from the Respondent’s solicitors of 29 April as though it were an application for a review under rule 35(1) to extend the 14‑day time period for seeking such a review.  Nonetheless, the Employment Tribunal found that the Claimant’s case of unfair dismissal was made out, it awarded her compensation of £20,080.64, and it found that the Respondent had not provided her with details of the terms of her employment, for which she was awarded compensation in the sum of £1,203.68.  The Judgment, which is dated 25 May 2011, was sent to the parties on 1 June.

14.	On 25 May the Respondent renewed his application to the Employment Appeal Tribunal and sought to revise the Notice of Appeal.  It also sought review of the decision of the Employment Tribunal complaining about the order that had been made on 10 March.  That order, it was said, failed to set out the consequences of the order; in particular, it did not make clear that the Respondent should be permitted to participate in the remedy hearing.  There was no reference, it was said, to his right to apply for a review of the striking‑out, and the order did not make clear which parts of the order of 10 March 2011 were subject to the unless order.  It was said that the refusal on the part of the Employment Tribunal to agree an adjournment was perverse.  On 26 May the Employment Tribunal refused to review its decision.  Although the Claimant had belatedly prepared a witness statement and a schedule, these, as we have said, were never supplied to the Respondent.  We were also told that the Respondent’s solicitor did not realise that the unless order referred to the requirement to lodge a typescript until the day of the hearing.

15.	The Employment Tribunal in its decision of 26 May concluded it had no jurisdiction to entertain the application, either that it should be permitted to make an application for an adjournment or in the alternative to cross‑examine the Claimant.  The letter of 29 April 2011 was treated as an application under rule 35(2).  At this point in time, however, the application to adjourn had already been refused, and the appeal against the refusal had also been disposed of by the Employment Appeal Tribunal under rule 3(7).  So far as we can tell, the only request in the letter, to which we have referred, from the solicitors was for permission for the Respondent’s solicitor in the absence of any other representative of the Respondent being present to cross‑examine the Claimant.

16.	We note that two relevant authorities were not before the Employment Tribunal – North Tyneside Primary Care Trust v Aynsley and Ors [2009] ICR 1333 and D & H Travel Ltd v Foster [2006] ICR 1537 – nor was rule 10 cited to the Employment Tribunal.  On that occasion the Claimant was represented by Mr White, who appears before us today, and the Respondent was represented by the solicitor.  The Employment Tribunal considered that the Respondent had given no satisfactory explanation for its non‑compliance with the order or its failure to apply for a review within 14 days of the order complained of.  The suggestion was made that the Employment Tribunal should have borne in mind that notwithstanding the Respondent was in breach of the directions order, so was the Claimant, although of course no unless order had been made against the Claimant.  The Employment Tribunal refused to extend time as it was not just and equitable to do so.  On 6 June the Respondent wrote to seek written reasons.  On 15 July HHJ McMullen QC directed that the amended Notice of Appeal in relation to the adjournment should be disposed of under rule 3(9).  He observed that if the Respondent was complaining it had not been allowed to participate in the remedy hearing, it should have sought a review from the Employment Tribunal or an appeal against that decision, both of which it had already done.  On 21 October 2011 the Tribunal produced written reasons.

The Notice of Appeal and submissions in support
17.	It was firstly said that the Employment Tribunal was wrong to treat the letter from the Respondent’s solicitors as an application to review the Judgment under rule 34 and to extend the time limit under rule 35(2).  It was submitted that the application should have been dealt with under rule 10(2), for which there was no time limit, or there would be a more generous approach to a time limit.  This particular submission, at least in so far as it is suggested there is no time limit for making such applications, overlooks the provisions of rule 11, to which we shall come.

18.	It was submitted that on the authority of the Aynsley decision, to which we shall come, the relevant application for a reconsideration or review should not have been made under rules 34 and 35 but under rule 10(4), and the Respondent pointed to a lacuna in the rules, which, as we shall come to shortly, provide as to what should happen in cases where a response is either not lodged or was rejected but do not make any provision as to what should happen if a response that has been lodged in time and has been accepted by the Employment Tribunal is subsequently struck out.

19.	It was also submitted that regardless of other considerations it was wrong to exclude the Respondent from participating in the remedy hearing; the Respondent continued to have party status.  Even if, it was submitted, rule 34 was engaged, the Employment Tribunal should have considered in determining what order to make under rule 34 the considerations that are identified in the Civil Procedure Rules (CPR), rule 3; it had given too great weight to finality in the litigation rather than attempting to do what was appropriate to do justice between the parties.  It was stressed that there was a need for proportionality in the order that was made, and it was possible for there to be a lesser sanction imposed on the Respondent than debarring him not only from challenging the merits of the claim but also participating in the remedy proceedings.  The Employment Tribunal had not considered the issue of prejudice.  Although in many cases prejudice was obvious, in the particular circumstances of this case, when weighing up the balance of prejudice, although the prejudice to the Respondent may be seen to be obvious when it was debarred from defending a claim, any prejudice to the Claimant was less readily apparent.

20.	Further, as at 3 May the Claimant was well aware of the Respondent’s case; it was set out in the ET3, and relatively little of it could be regarded as illegible.  There had not been any suggestion by the Claimant she had been unable to decipher the ET3, and matters had been explained in some detail in the letter from the solicitors, to which we have referred.  The conduct of Mr Shiell was not contumelious – we have not heard any submission that it was – and the Employment Tribunal also did not consider the substantive merits of the Respondent’s case, but in any event it could have and should have allowed participation in the remedy hearing, and reliance was placed on the case of Foster.  Mr Godfrey repeated that the Respondent was confused as to which order the unless order related to; was it the directions, or was it the requirement to lodge a typescript?  We are not particularly impressed, or indeed not impressed at all, with his argument, because Mr Shiell complied with neither order.

The Claimant’s submissions
21.	Mr White submitted that once the Respondent’s ET3 was struck out rule 9 applied, with the consequence that the Respondent was debarred from further participation in the proceedings.  He recognised that rule 9 on its face applies only in the case of the Respondent who has failed to lodge a response or whose response was not accepted; that was not this particular case, but he submitted that it was necessary to read rule 9 as applying in a case where an ET3 that has been accepted by the Employment Tribunal had been struck out pursuant to an unless order because otherwise the unless order would not be a sanction at all.  The point was taken that the submission that the relevant rule was rule 10 rather than rules 34 and 35 was not taken before the Employment Tribunal, and the authority of Glennie v Independent Magazines (UK) Ltd [1999] IRLR 79 suggested that a point not taken in the Employment Tribunal should not be taken on appeal.

22.	Glennie, however, was a case based upon a concession that had been made and where an attempt was made to resile from that concession.  There is clearly jurisdiction in the Employment Appeal Tribunal to permit a point to be raised that was not raised below.  In the particular circumstances of this case, the Employment Tribunal may well have been led into error not simply by the Respondent but also by the Claimant.  Equally, a point arising out of similar factual circumstances was not taken before the Employment Tribunal expressly, was not only permitted to be raised in the Employment Appeal Tribunal but given effect to; the cases to which I am referring are Aynsley, to which we shall come, and Foster.

23.	It was submitted that there was no obligation on the Employment Tribunal to conduct a review or treat the letter from the solicitors as an application under rule 10(2).  The application was in any event out of time, if it were an application, either under rule 10 or because rule 11 provides that such an application has to be made not less than 10 days before the hearing.

24.	So far as discretion was concerned, Mr White accepted that broadly speaking the Employment Tribunal in exercising its discretion should have regard to the matters set out in the CPR, rule 3(9), but, following the decision in Neary v Governing Body of St Albans Girls’ School and Anor [2010] ICR 473 CA, rigid adherence was not necessary; it was, however, necessary for the Employment Tribunal to consider all relevant circumstances when it came to exercising its discretion.  He submitted that whether the application was made under rule 10 or under rules 34 or 35, the submissions made as to the exercise of discretion would have been the same.  There was no explanation for the Respondent’s failure to comply with the orders; there had been a delay in making the application, and the Claimant was entitled to know the claim she had to meet.  We are not impressed by this particular argument; if the Claimant had genuinely had difficulty in understanding or reading the ET3, surely it would have been raised by her solicitors, and it was not.

25.	Further, it was not argued before the Employment Tribunal by the Respondent that it was confused by the failure in the unless order to specify the particular obligations that were required to be remedied, and the Employment Tribunal did take into account, in coming to its decision, the Claimant’s own default.

The ET rules
26.	I now turn to consider the relevant rules.  Under rule 8, so far as is material:

“(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 the 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. 
(4) Any default judgment issued by a chairman under this rule shall be recorded in writing and shall be signed by him.  The Secretary shall send a copy of that judgment to the parties, to ACAS, and, if the proceedings were referred to the tribunal by a court, to that court.  The Secretary shall also inform the parties of their right to have the default judgment reviewed under rule 33. The Secretary shall put a copy of the default judgment on the Register (subject to rule 49 (sexual offences and the Register)).
(5) The claimant or respondent may apply to have the default judgment reviewed in accordance with rule 33.  […]”

27.	Rule 9 of the Employment Tribunal Rules provides as follows:

“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.”

28.	There is an apparent lacuna in this rule, because it does not deal with the case that we have mentioned where an Employment Tribunal has struck out a response that has already been accepted.  We now turn to rule 10, the general power to manage proceedings:

“(1) Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate.  Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit.  Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing (see regulation 2 for the definition of “hearing”).
(2) Examples of orders which may be made under paragraph (1) are orders— 
[…] (e) extending any time limit, whether or not expired (subject to rules 4(4), 11(2), 25(5), 30(5), 33(1), 35(1), 38(7) and 42(5) of this Schedule, and to rule 3(4) of Schedule 2) […].
(3) An order may specify the time at or within which and the place at which any act is required to be done.  An order may also impose conditions and it shall inform the parties of the potential consequences of non-compliance set out in rule 13.
(4) When a requirement has been imposed under paragraph (1) the person subject to the requirement may make an application under rule 11 (applications in proceedings) for the order to be varied or revoked.  […]”

29.	Rule 11 deals with applications in proceedings:

“(1) At any stage of the proceedings a party may apply for an order to be issued, varied or revoked or for a case management discussion or pre-hearing review to be held.
(2) An application for an order must be made not less than 10 days before the date of the hearing at which it is to be considered (if any) unless it is not reasonably practicable to do so, or the chairman or tribunal considers it in the interests of justice that shorter notice be allowed.  The application must (unless a chairman orders otherwise) be in writing to the Employment Tribunal Office and include the case number for the proceedings and the reasons for the request.  If the application is for a case management discussion or a pre-hearing review to be held, it must identify any orders sought.”

30.	Rule 28 deals with orders and Judgments:

“(1) Chairmen of tribunals may issue the following—
(a) a ‘judgment’, which is the final determination of the proceedings or of a particular issue in those proceedings; it may include an award of compensation, a declaration and recommendation and it may also include orders for costs, preparation time or wasted costs;
(b) an ‘order’, which may be issued in relation to interim matters and it will require a person to do or not to do something.”

31.	It is apparent therefore that the definition of “Judgment” would preclude an unless order being considered to be a “Judgment” under rule 34, to which I now turn:

“(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.
(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only—
(a) the decision was wrongly made as a result of an administrative error;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) the interests of justice require such a review.
(4) A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraphs (3)(a) and (e).
(5) A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraphs (3) or (4).”

32.	Rule 35 is also relevant, because it provides the relevant timescale for an application to have a decision reviewed, which is required to be made within 14 days of the date when the decision was sent to the parties, although the time limit may be extended if it is just and equitable to do so.

The authorities
33.	The first authority to which we come is Aynsley.  The facts of the case bear some similarity to the present case.  The respondent in that case had failed to comply with an unless order, and its claim was struck out under rule 3(4) of the ET Rules.  Equally, in that case, when application was made for a review the respondent’s solicitors did not specify the rule under which relief was sought.  Paragraphs 23 and 24 of the Employment Appeal Tribunal Judgment of Underhill J read as follows:

“23. Ward Hadaway's letter to the Tribunal of 27 June 2008 (see para 18 above) did not in fact specify the rule under which the Trust was seeking a review.  However, as already noted, it appears to have been common ground before the Judge that the application was being made under rule 34.  That rule is in the following terms [set out as we have set it out above].
It is well-established that a claimant whose claim has been struck out for non-compliance with an unless order may apply for relief under this rule, on the basis that when its operation is triggered by non-compliance the resulting strike-out represents a ‘judgment’ within the meaning of rule 34 (1) (b) - being "a final determination of the proceedings" (see rule 28 (1) (a)): see Uyanwa‑Odu [and Anor v Schools Office Services Ltd and Anor UKEAT/0295/05] (above) and [Neary].
24. However, at a late stage in the preparation of this judgment I came to question whether the parties and the Tribunal had in fact been correct to treat the applications as falling under rule 34.  The authorities to which I had been referred all concerned cases where the default in question had been that of the claimant and what had therefore been struck out was his or her claim.  However, in the present case the default was on the part of the Respondent, so that what was struck out was the Trust's response.  It did not seem to me that the striking-out of a response gave rise to ‘a final determination of the proceedings’ (or of any issue in them): as discussed below, there may be room for argument about what its effect is but it certainly does not by itself conclude anything.  Accordingly, it seemed to me, it did not fall within the definition of a ‘judgment’ and could not be the subject of a review under rule 34.  I drew this difficulty to the attention of the parties and invited further submissions in writing.  It is the consequent hiatus which accounts for the delay in the promulgation of this judgment.”

34.	It was accepted by both parties in Aynsley that the Employment Tribunal was in error in applying rule 34.  The claimants sought to argue that the true analysis was a strike‑out of the response put the respondent in the same position, as if it had simply failed to present a response in the first place.  Such a case, it was submitted, was governed by rules 8 and 9, which I have read out, whereas the respondent maintained rule 8 could not apply because none of the circumstances in rule 8(2) applied.  Nonetheless, it was the respondent’s case that the order could be reconsidered under rule 10(2)(n), which, again, I have read out.  Underhill J considered these rules and submissions, and went on to say at paragraphs 27‑29:

“27. The truth is that the draftsman of these notoriously ill-thought-out rules has simply failed expressly to cater for what happens when a response is struck out. It is necessary to adopt a purposive approach in finding a construction which produces the sensible result which must be assumed to have been intended.  In my judgment the intention must have been that a respondent whose response has been struck out is liable to have a default judgment issued under rule 8, just as if he had failed to present a response in the first place (or his response had not been accepted).  That is the appropriate consequence for such a default; and if it did not apply the sanction of a strike-out out would be empty.  Thus far I agree with Ms Genn.  I do not, however, agree with her that it follows that the issue of liability in the present case has been determined. It is clear from rule 8 (1) that in a case falling within the terms of the rule a chairman has a discretion whether or not to issue a default judgment; and, if so, whether that judgment should determine liability only or liability and remedy (see para. (3)).  In the present case, the Judge did not consider whether to issue such a judgment and did not do so; and since there has been no judgment, rule 33 is not in play.  I therefore agree with Mr Duggan that what we have here is a mere "order" – namely, the "automatic" strike-out order triggered on 20 May - which can, in accordance with Elias P's analysis in Hart v English Heritage [[2006] ICR 655], be the subject of reconsideration under rule 10 (2) (n).  (There is a further potential problem in such a case, since it might be said that logically not only rule 8 but rule 9 should apply; and, since the right to make an application under rule 10 (2) (n) is not one of the rights preserved by rule 9, a respondent would appear to be debarred from pursuing such an application and would have to sit back and wait for a judgment.  That is not a satisfactory state of affairs – cf. Moroak v Crombie [2005] ICR 1226 and [Foster] – and my strong inclination would be to construe the rules so that the respondent had at least the right to make an application under rule 10 (2) (n).  But no point was taken specifically on rule 9 in the present case, and I need reach no concluded view about it.)
28. Although I have felt obliged to try to unscramble this procedural pigs' breakfast, I do not believe that it ultimately makes any difference to the substantive issue on this appeal.  The effect of the authorities by reference to which the Judge directed himself is that it is necessary in any application for relief from the effect of an unless order to take into account the provisions of CPR 3.9.  In my view that must be the applicable approach whether the exercise is conducted by way of a ‘review’ under rules 33 or 34 or as a reconsideration under rule 10 (2) (n) (or indeed as part of the exercise by the chairman of his discretion under rule 8 (1)).
29. I should in this connection mention a point raised by the Claimants by way of cross-appeal. On the basis that the application was being made under rule 34, they submitted that it had not been made within the fourteen-day time limit specified at rule 35 (1), and that the Judge had failed to consider whether it was just and equitable to extend time. On the basis of my conclusions above that point does not now arise.”

35.	We now turn to the decision in Foster.  In that case, a default Judgment was actually entered – in the present case, of course, no Judgment was entered – but the respondent nevertheless attended at the hearing.  It was held that the Employment Tribunal could have reviewed the default Judgment under rule 34 and permitted the respondent to participate in the remedy hearing rather than the merits.  To prevent him from appearing in the merits but allowing him to participate in the remedy hearing would be a proportionate sanction (paragraphs 39, 43, 45, 51, 52, 55, 56, 61, 62 and 65):

“39. We accept that the Chairman did err in saying that had there been a valid application then he would have exercised his discretion against review.  The error was that he did not take into account the potential merits of the case, but focused merely on the nature and extent of the breach of the Rules.  […]
43. Mr Pievsky submits that even if the default judgment on liability were to stand, nonetheless it was plain that the Appellants wished to take as much part in the proceedings as they could and since Mr Henderson was there at the review hearing he should have been permitted to participate.  He says – and this is supported by certain observations of the Chairman at the beginning of his Decision – that the Chairman simply assumed that it would be impossible for the Appellants to participate because of Rule 9.  Accordingly, once he had determined that there should be no review of the default judgment, he did not give any further thought to the possibility that Mr Henderson might participate in the remedies hearing alone.  The default judgment itself did not apply to the remedy.  […]
45. In the course of giving judgment, Burton J commented at paragraph 6 that in exercising these discretions, the Tribunal had to have regard to the issue of proportionality and stated:
‘[…] if a fair trial were not possible on liability there could still be an order simply to barring the respondent from taking any further part on liability, but permitting that respondent to take part on the question of compensation.’
51. He argues that given that Mr Henderson was a litigant in person and that he had in substance made an application which could properly be considered as a Rule 34 application for review, then he ought to have been allowed to participate in the proceedings.  The Chairman could properly have taken his application to be a Rule 34 application; had he done so, then the only proportionate response, particularly since Mr Henderson was at the hearing and ready to participate, was formally to allow him to enter a response so that he could thereafter participate in the remedies hearing.  This would not have had to involve upsetting the default judgment.
52. He emphasises, as has been said on a number of occasions, that the purpose of the debarring rules is not to punish a party for having failed to comply with the Rules. Proportion at the end of the day is what justice requires, and it would have been met here by allowing the limited participation which could have been achieved without any further delay to the proceedings.
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.
61. We bear in mind the observations of Burton J in the NSM Music [v Leaf [2006] ICR 450] case that it will sometimes be proportional to allow a party to participate in the remedies hearing albeit that liability has been determined against him. We all of us consider that this is plainly such a case.  Mr Henderson was present; he could have cross examined the Respondent and made submissions.  Whereas the Chairman understandably did not think it right to reopen liability, with all the delays thereby involved, that very fundamental concern did not apply to the more limited participation in the remedies hearing.  Had Mr Henderson sought an adjournment to produce witnesses or further documents, there would have been every good reason to refuse it.  But that was not suggested.  He wanted to be able to make observations and submissions with respect to remedies, even if he could not put his side of the story with respect to liability.  To exclude him in the circumstances seems to us simply as a punishment for failing to comply with the rules.
62. Punishment is clearly not the purpose of these sanctions: see the observations of Chadwick LJ in Hussain v Birmingham City Council [2005] EWCA Civ 1570 at para 36 dealing with similar provisions in the Civil Procedure Rules.  As his Lordship there pointed out, ultimately all discretions should be exercised so as to achieve the overriding objective, which is to deal with cases justly.  Moreover, as the judgment of Mummery J in Kwik Save [Stores v Swain [1997] ICR 49] shows, an important consideration will be the extent of any prejudice to the parties.  In this case there would be no prejudice to the Respondent in allowing Mr Henderson to take part; by contrast, there was obvious prejudice against the Appellants in denying him that right.
65. We think that the Chairman was empowered to consider what was in effect Mr Henderson's application to participate in the remedies hearing, albeit that this had to be done through the device of reviewing the refusal to accept a response out of time.  As artificial as that was, we have no doubt that the overriding objective dictated that he should have been allowed to participate in the remedies hearing given that he was present and eager to do so.  There would have been no real prejudice to the Respondent in permitting this.”

Discussion and conclusions
36.	We bear in mind that an unless order is not intended to be penal.  We also bear in mind the importance of the overriding objective and the importance of the courts doing justice between the parties.  We also bear in mind the importance of court rules and orders being complied with.  We also bear in mind that unless some effect is given to an unless order in the case of the possibility of striking out a response, and unless there is some sanction, the order would simply have no effect; so we would assume, as Underhill J was minded to assume, that rule 9 was intended to apply in such a case.  We recognise that there are difficulties in construing the rule in this way, but unless the rule does apply to such cases there will be no effective sanction, so far as an unless order requiring the Respondent to take some step or have his response struck out is concerned.

37.	We are not sure that it matters greatly whether the application that should be made is made under rule 10 or rules 34 and 35, because it seems to us that the powers of the Employment Tribunal in each case are discretionary and subject to the same requirements and discretionary constraints, including the importance of weighing up the balance of prejudice, looking at the reasons for failure, looking at the reasons for the default, and considering whether the default is contumelious; one would also expect some greater leeway to be given to a litigant in person, and also an Employment Tribunal would be bound to have regard to the effect of an adjournment.  Proportionality is also a matter of considerable importance.  We have not set out all the relevant matters that should be taken into consideration but have drawn attention to those that have a particular relevance in the present case.

38.	In our opinion, the Employment Tribunal fell into error in basing its decision on rule 34 rather than rule 10.  It is unfortunate that the relevant rules and authorities were not drawn to the attention of the Employment Tribunal.  However, the application of the Aynsley case leads to that result: there was clearly jurisdiction to entertain an application under rule 10.  This should have been considered and dealt with with all relevant matters being taken into account.  The fact that the point relating to rule 10(2) was not taken before the Employment Tribunal is of limited assistance, as the Employment Tribunal itself decided the matter using the same discretionary considerations that will apply under rule 34.  We cannot really see any material difference, as we have said, in the required approach.  The principal criticism that can be made of the decision of the Employment Tribunal is not so much that it considered the wrong rule but that it does not appear to have taken all the relevant discretionary considerations into account.  We have already dealt with the submission that the Claimant was entitled to know the claim she had to meet; we are satisfied that she was well aware of what the Respondent’s case was.  We have already indicated why we do not consider that Glennie is of assistance to us.

39.	We think, although with some diffidence, that Mr White is correct in submitting that the Respondent was caught by rule 9 and was debarred from further participation in the proceedings unless there was a successful review, which should have been under rule 10, and that time for making that could have been extended were it in the interests of justice to do so.  The exercise of discretion in this case needs to be seen against the application that was before the Employment Tribunal, which was limited to permitting cross‑examination of the Claimant.  The appropriate response may well have been, in accordance with Foster, to allow cross‑examination, which clearly could have gone ahead without any adjournment, but limit it to the question of remedy, which would include the question of contribution to the dismissal and any Polkey reduction.  We consider that the decision of the Employment Tribunal not to permit reopening of the merits was one that was justified, but the Employment Tribunal, having not had the relevant authority of Foster drawn to its attention, should, in our opinion, have given very careful consideration before it decided to exclude the Respondent’s solicitor from participating in that part of the hearing that pertains to remedy.

40.	We have indicated that the appropriate response may well have been to allow that cross‑examination; however, the decision should not be that of the Appeal Tribunal but it should be that of the Employment Tribunal, and we therefore conclude that the question as to whether or not the Respondent should be permitted to participate in the remedy hearing should be reconsidered by the Employment Tribunal.  Our provisional view is that, because the Employment Tribunal has already heard and accepted the Claimant’s evidence, it might be perceived as being very difficult for that self‑same Employment Tribunal to bring a wholly fresh mind to bear on the remitted hearing.  We will inquire of counsel if they have any views on the matter, but our provisional view is that the matter should be remitted to another Tribunal.