MRS M ALLAIN v JACK TAYLOR SCHOOL [2001] UKEAT 1010_00_0502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1010_00_0502Case No Appeal No. EAT/1010/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M ALLAINAPPELLANTJACK TAYLOR SCHOOLRESPONDENT
Before
His Honour Judge Peter Clark Dr D GrievesDate 5 February 2001
[1]APPEARANCES For the Appellant MR HUGO PIERRE Unison Representative Instructed by Camden Unision 100 Stanhope Street London NW1 3JX JUDGE CLARK The material chronology in these proceedings is as follows. On 23 December 1999 the Appellant, Mrs Allain, presented an Originating Application to the London (North) Employment Tribunal complaining of unfair dismissal and disability discrimination on the part of her former employers, the Jack Taylor School and the London Borough of Camden. The claim is resisted.[2]On 2 February 2000 the parties were sent notice of a directions hearing to take place on 18 February. On that day a Chairman, Mr PRK Menon, gave certain directions, contained in a letter to the parties dated 22 February. Both parties were represented on that occasion.[3]On 10 April the Employment Tribunal wrote to the parties giving notice of a further directions hearing to take place on 18 April. It appears that that letter did not arrive before that date, at least it did not come to the attention of Mr Hugo Pierre, the trade union official representing the Appellant. That hearing did take place before a different Chairman, Mrs J R Hill. On that occasion the Respondent's solicitors attended but the Appellant's representative did not. By a letter dated simply April 2000, a date on or after 18 April, Mrs Hill directed that the Appellant should provide copies of her medical evidence to the Respondent and the Employment Tribunal by 9 May. The case was listed for a 3 day hearing commencing on 7 June.[4]At paragraph 6 of that letter it is said:
"The Chairman noted that neither the Applicant nor her representative attended the hearing today. The Chairman is therefore minded to exercise her powers contained within rule 13(20(f) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 to strike out the Applicant's complaint on the grounds of want of prosecution unless the Applicant sends within 14 days written reasons as to why her complaint should not be struck out."
[5]On 2 May the Employment Tribunal sent out a Notice of hearing to the parties for 7-9 June. On 9 May, by a further letter, that was altered to a one day Preliminary Hearing listed for 7 June only.[6]It seems that on 6 June the Regional Chairman, Mrs Mason, reviewed the file and noted that the Appellant had not provided written reasons as to why the complaint should not be struck out in accordance with paragraph 6 of Mrs Hill's directions letter.[7]Accordingly Mrs Mason vacated the hearing for the next day and struck out the complaint for want of prosecution. That order, with extended reasons, was promulgated on 13 June. At paragraph 5 of her reasons she records that the Applicant did not appear to attend the hearing on 7 June and had not been heard from since. The order was signed by the Regional Chairman on 12 June.[8]Against that order the Appellant now appeals. Mr Pierre gives the following explanation for her procedural defaults in this case.[9]His office is based in an annex to the school. This was closed from 15 April until 1 May inclusive for school holidays. He did not see the Employment Tribunal's letters of 10 April giving notice of 18 April hearing, and the letter dated April following Mrs Hill's directions hearing, until 3 or 4 May. He says that this was after the expiry of the 14 day deadline in paragraph 6 of Mrs Hill's letter. Further having received the notice of hearing for 7-9 June hearing, later limited to 7 June, he assumed that the case had not been struck out.[10]He tells us that he attended the Employment Tribunal's offices on 7 June to be told that the case had been struck out. On the same day he wrote to the Employment Tribunal, setting out the above explanation and asking for the case to be reinstated. On 9 June the Employment Tribunal acknowledged receipt of his letter. He then received Mrs Mason's strike out order.[11]His first point in the appeal is that the Appellant was not served proper notice under rule 13(3) giving her an opportunity to show cause why the complaint should not be struck out under rule 13(2)(f). We see nothing in that point. Paragraph 6 of Mrs Hill's directions letter plainly gives adequate notice for the purpose of rule 13(3).[12]However, the case is not as simple as that. We have referred to Mrs Mason's observation at paragraph 5 of her reasons that the applicant did not appear to attend the hearing on 7 June and that the Tribunal had not heard from her since.[13]Mr Pierre attached a copy of his letter of 7 June to his notice of appeal. That was sent to the Tribunal and by letter to the Registrar dated 18 August a Chairman responded by saying that the letter of 7 June from the Applicant's representative has not been received at the Tribunal's office. The first time it has been seen is as appended to the notice of appeal. That simply cannot be right because we have been shown a copy, and we have no reason to doubt its authenticity, of the Tribunal's letter of 9 June acknowledging Mr Pierre's letter of 7 June.[14]In these circumstances it seems to us that had the Regional Chairman seen Mr Pierre's letter of 7 June before formally promulgating her order signed off by her on 12 June and promulgated on 13 June it may have made a difference to the strike out order which she felt obliged to make on 6 June. We say no more. This is a Preliminary Hearing held to determine whether or not the appeal raises any arguable point of law. We think that the particular circumstances of this case, to which we have referred, give rise to an arguable point which ought to go to a full inter partes hearing.[15]Accordingly we shall allow the appeal to proceed to a full hearing. We shall mark it Category C. It should be listed for half a day. The parties to exchange skeleton arguments not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this Tribunal at the same time.