MRS M ALLAIN v JACK TAYLOR SCHOOL [2001] UKEAT 1010_00_2711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1010_00_2711Case No Appeal No. EAT/1010/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M ALLAINAPPELLANTJACK TAYLOR SCHOOLRESPONDENT
Before
His Honour Judge D Pugsley Mr D J JenkinsDate 27 November 2001
[1]APPEARANCES For the Appellant MR HUGO PIERRE Representative Camden Unison 100 Stanhope Street London NW1 3JX For the Respondent MR MARK MULLINS (of Counsel) Instructed by: Ms Alison Lowton Acting Borough Solicitor & Deputy Chief Executive London Borough of Camden Town Hall London WC1H 9LP JUDGE D PUGSLEY This is an appeal from an Employment Tribunal Decision promulgated on 13 June 2000, the material chronology is as follows. On 23 December 1999 the Appellant, Mrs Allain, presented an Originating Application to the London North Employment Tribunal. She complained of unfair dismissal and disability discrimination on the part of her former employers, the London Borough of Camden, when she worked at the Jack Taylor School. The claim is opposed by the Respondent.[2]On 2 February 2000 the parties were sent notices of a directions hearing to take place on 18 February. On that day, a Chairman, Mr Menon gave certain directions which were contained in a letter to the parties; at that stage both parties were represented. It is right that we say that the representative is Mr Pierre. Unison is one of the largest, and possibly most financially well endowed unions there are, but it is pertinent that we note that Mr Pierre is a convenor for Unison. He is allowed certain days off to attend to union business, but he is not a full time union officer, and therefore that may explain some of the events to which reference we shall make in due course.[3]On 10 April the Employment Tribunal wrote to the parties giving notice of a further directions hearing to take place on the 18 th . That letter did not come to the attention of Mr Hugo Pierre until 4 May. That hearing took place before a different Chairman, Mrs Hill. On that occasion the Respondent's solicitors attended, but Mr Pierre did not attend.[4]By a letter which is just dated April 2000, at a date on or after 18 April, Mrs Hill directed that the Appellant provide copies of her medical evidence to the Respondent and the Employment Tribunal by 9 May. The case was listed for a three day hearing commencing on 7 June. We have looked at the body of that letter which is set out in the bundle of documents. At paragraph 6, it said this:
"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(2)(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 Applicants send within 14 days written reasons as to why her complaint should not be struck out."
We are bound to say that the penal nature of the consequences of applying do not hit you when you read the letter, buried as it is, in the penultimate paragraph, especially since it is right to say, at that stage, that a case has been set down for a full merits hearing on 7 June for a three day hearing.[5]On 2 May the Employment Tribunal sent a notice of hearing to the parties from 7 - 9 June. By a further letter, dated 9 May, it then said that the case was now to be listed as a preliminary hearing on 7 June. Well, Mr Pierre who is, as we say, not a full time official, attended on 7 June, and he then understood the case has been struck off by the Chairman of the Tribunals. He then wrote:
"I would first like to explain my non-appearance at the Interlocutory Hearing set for 18 th April. I received the letter, dated 10 th April 2000, inviting me to attend the Hearing on 4 th May 2000. This was after the Hearing had taken place. Secondly I would like to explain why I did not comply with your request for an explanation for my non-attendance. I received the letter dated, April 2000, on the 4 th May. This was after the expiry of the 14 day deadline. I attempted to speak to somebody dealing with the case that day but was unable to do so. I did not attempt to contact the Tribunal after this date as I received the letter inviting me to the Preliminary Hearing, dated 2 nd May, on 10 th May. I therefore assumed that the case had not been struck off. Unfortunately, this is not my first experience of receiving post late from the Tribunal."
He then went on to deal with how some letters had taken in inordinate length of time. He then said this: "There is however an additional problem which is not of your making. My office is based in the annex of a school. Although I have access to my office at all times, the post is delivered to the main school office. I do not have access to this office during the school holidays. This school Easter holidays were from 15 th April to 1 st May inclusive. Any post that arrived during this time I would not have received until 4 th May. I understand that your office attempted to contact me prior to the Preliminary Hearing. My telephone number was changed from 30 th May ……." and then he gives the number.[6]It is, we understand, important of course that Tribunals keep track and monitor the case. But it is unfortunate in this case that the Regional Chairman, Mrs Jane Mason, took the onus upon her to strike this case out, saying at paragraph 4:
"4 On 6 June the day before the hearing, I reviewed the file and saw that the Applicant had not provided reasons as directed at paragraph 6 of the directions letter. That being so, I considered that the Applicant was not pursuing her claim and would not attend the hearing. That being so, I decided that the interests of justice to the Respondent require that I should vacate the hearing and strike out the Originating Application for want of prosecution." 5 It is worth noting that the Applicant did not appear to attend the hearing on 7 June and the Tribunal has not heard from her since."
The latter part is simply inaccurate. Mr Pierre did attend, and he sent the letter on 7 th , and faxed it on the 8 th . This was sent to the Tribunal. By a letter to the Tribunal dated 18 August, the Chairman responded by saying:
" the letter of 7 June 2000 from the Applicant's representative has not been received at the Tribunals office. The first time it has been seen is as appended to the Notice of Appeal."
That simply cannot be right. We have been shown a copy and no one has doubted it, the authenticity of the Tribunal's letter of 9 June acknowledging Mr Pierre's letter of 7 June.[7]What the Regional Chairman did not do was to peruse and consider the full file as we now have it. Had she been able to do so, she would have noted that there were letters thereafter. Quite simply, we do not think it is good professional practice for an Employment Tribunal to threaten people with want of prosecution and then on subsequent occasions, on 2 May and of 9 May, and also 17 May, send out a notice of hearing without referring to whether the case is still liable to be struck out. If you are going to say "We will strike it out unless we hear from you within fourteen days", we think it is to mislead people to then give another date for the hearing and to alter the hearing from a three day to a one day hearing. We do not consider valid criticism can be made of Mr Pierre, assuming, as he said in his letter of 7 June that he thought it had not been struck out. If one is going to strike it out, then one would have thought as a matter of policy and good management, as far as the employee and employer are concerned, it should be struck out well before the hearing.[8]The truth of the matter is that though Mr Pierre can be criticised, if we may say so, for not keeping in touch with his own office, and he accepts that criticism, it was, we understand, a temporary arrangement. Equally, we think the Tribunal behaved in a way that it did not spell out the gravity of the position, as far as the strike out was concerned. By allowing letters to go out, dealing with the hearing, it had threatened that the case is going to be struck out if people do not appear, an ambiguous message is sent.[9]We have considered what the reality would have been if Mrs Mason had, apart from having been able to peruse the full file as we have done, she had the letter of 7 June. We think any fair minded Tribunal Chairman would have said "Look, this should not have happened, but it has happened. This puts a different complexion on it; we do not think that this is what a striking out for want of prosecution should be used for, therefore, I will either review my own decision if promulgated or alter the decision if not." In the circumstances in this case, we consider that the proper course is to allow this case to be reinstated.[10]It would be wrong for us to leave this case without paying a very real tribute to the good sense and professionalism of the London Borough of Camden and Mr Mullins who appears. We are used to people arguing cases, often at great length, where tactful concessions could and should be made. Mr Mullins right at the start said that he would have to concede that the Tribunal, if they had the letter of 7 June, would have treated it as an application for review. We have to say there has been some discussion before us as to whether we should send this case back to be reviewed by the Employment Tribunal or whether we should deal with it ourselves.[11]At the end of the day, both Mr Pierre and Mr Mullins were happy that we should consider that we should take the initiative. We have to say that we have been materially assisted by the sensible concessions made by Mr Mullins. We are mindful of the tremendous burden that local authorities do have to discharge, and we think they have acted in a thoroughly proper way and have done absolutely nothing wrong, and the concessions they have made before us were wholly appropriate. We allow the appeal and direct this case to be reinstated.