MS R BOARD v SUPERDRUG STORES PLC [2002] UKEAT 1230_00_0802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1230_00_0802Case No Appeal No. EAT/1230/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS R BOARDAPPELLANTSUPERDRUG STORES PLCRESPONDENT
Before
Mr Justice Burton Mr P R A JacquesDate 8 February 2002
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent The Respondent chose not to appear but sent observers MR JUSTICE BURTON This is an appeal by the Appellant, Ms Board, against the Order of the Employment Tribunal held at London Central, dated 29 August 2000. The matter came to a preliminary hearing before Mr Recorder Langstaff QC and members, dated 23 March 2001, and the only point which the Employment Appeal Tribunal, so constituted, directed should proceed was as follows:
"THE TRIBUNAL ORDERS that the Appeal be allowed to proceed to a full hearing limited to consideration of the issue as to whether a letter received by the Employment Appeal Tribunal within 14 days of the promulgation date of the Employment Tribunal Decision seeking" and the way it has put it: "essentially a review" although that is clearly the arguable point that was sought: "complies with the relevant regulations regarding review applications in accordance with the Judgment of the Employment Appeal Tribunal"
[2]The circumstances were that the Employment Tribunal made a Decision on 29 August 2000 which was sent to the parties on 6 September 2000, dismissing the Appellant's application for unfair dismissal on the grounds there set out.[3]On 8 September 2000 a letter was sent by the Appellant to the Employment Appeal Tribunal, and that read as follows:
"Dear Sir/Madam Further to my phone call to your office [that is the Employment Appeal Tribunal's office] on Tuesday 08/09/00, I ask you to re-open the case between myself and Superdrug as I was not informed of a new hearing date being set yet alone heard."
And then she sets out her complaint about the Decision of the Employment Tribunal to which we have referred.[4]The preliminary hearing came on, on 23 March 2001, and there was no appearance or representation by or on behalf of the Appellant, but, nevertheless, the matter was sent on for full appeal by that Tribunal, despite such non-appearance.[5]The request by the Appeal Tribunal, as set out in paragraph 4, was as follows:
"We would ask that the Appellant provide any further observations she may have in writing no less than a week before the hearing and that the Respondent provide a skeleton argument within the same time scale."
The expressed hope of the Tribunal, there set out, was not fulfillable because it appears that the Appellant has not been capable of being traced, and certainly appears to have no further interest in the prosecution of her claim or of the appeal, which, on that limited basis, was permitted by this Tribunal.[6]The Respondent has filed a Skeleton Argument, as requested by this Tribunal, but has limited itself, in order to save costs, to a formal attendance today and to leaving it to this hearing for this Tribunal to conclude whether in fact that document, of which I have recited the opening part, amounts to an application for review within the Rules.[7]Rule 11 of the Employment Tribunals Constitution etc (Regulations) 1993 Schedule 1 provides for either a review of the Tribunal's own motion, which did not occur in this case, or a review on the application of a party. By Rule 11(4) an application for a review may be made at the hearing, which it was not in this case, for obvious reasons, namely that the Appellant did not attend. If no application is made at the hearing, an application may be made to the Secretary at any time from the date of the hearing, until fourteen days after the date on which the Decision was sent to the parties, and must be in writing, stating the grounds in full.[8]There may, in exceptional circumstances, be some explanation put forward which may enable a Court to find that the terms of Rule 11(4) have in some way been complied with without express reference to its terms, but, in this case, no evidence or explanation or submission is made to the Tribunal, and we are satisfied that, because this is an exceptional course, namely to allow a review of a Court's Decision, not limited to cases that are familiar to the High Court where parties do not attend, but permitted even where they do attend, that at any rate subject to exceptional circumstances, strict compliance with the Rules is required.[9]In this case, as we have indicated, no exceptional, or any, circumstances, are put forward and the question for us is twofold: 1) Was this an application for a review? 2) Was it made in accordance with 11(4)? The letter, on its face, does not read like an application for a review, and, although it invites the re-opening of the case, it is addressed to the Appeal Tribunal, and the Appeal Tribunal is a different body from the Tribunal which considered the case originally, by definition, quite apart of course from being an appellate body, and this document would ordinarily have been regarded, subject always to whether the formalities were fulfilled, as being more in the way of a Notice of Appeal than an application for a review, in any event.[10]But quite apart from that, it was not sent to the Secretary, it was sent to the Employment Appeal Tribunal, and in our judgment, absent from exceptional circumstances, it cannot be regarded as right that the Employment Appeal Tribunal in some way acts as agent for the Secretary of the local Employment Tribunal.[11]In those circumstances, we are entirely satisfied that the answer to the question which was posed by the preliminary hearing is clear, namely that this was not an application for a review served in accordance with, or within the timescales laid down by, paragraph 11 of the Rules, and, in those circumstances, this appeal is dismissed.