R ANDERSON T/A R & M INTERNATIONAL v MR G R OWEN [2003] UKEAT 0417_03_2410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0417_03_2410Case No Appeal No. EAT/0417/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
R ANDERSON T/A R & M INTERNATIONALAPPELLANTMR G R OWENRESPONDENT
Before
His Honour Judge J McMullenDate 24 October 2003
[1]APPEARANCES For the Appellant MR M S PANESAR (Of Counsel) Instructed by: Messrs Lyall Solicitors 1 Old Walsall Road Hamstead Village Birmingham B42 1NN For the Respondent MR PAUL MICHELL (Of Counsel) Instructed by: Messrs Keeble Hawson Solicitors Old Cathedral Vicarage Old James Row Sheffield S1 1XA JUDGE MCMULLEN This case is about the exercise of a Tribunal's discretion when considering a postponement of an application for a review of its earlier decision. I refer to the parties as Applicant and Respondent. It is an appeal by the Respondent in those proceedings against the decision of Mr J M Hepworth, Chairman sitting alone at Sheffield on 10 January 2003 registered with Extended Reasons on 16 April 2003. That was a decision on application for a review. I am hearing this appeal under Employment Tribunals Act 1996 section 28(4). I will refer to the parties as Applicant and Respondent.[2]The Applicant was represented by a Solicitor. The Respondent was not there. The Applicant made a number of claims and on the substantive hearing on 24 October 2002 in the decision registered with summary reasons on 1 November 2002 the Chairman decided that the Respondent should pay the Applicant £3,000 as compensation for unlawful deduction of wages. The issue on appeal is whether the Chairman exercised his discretion in an impermissible way in the decision made in January 2003 to refuse an application to postpone and to go on to consider that there was no merit in the application for review itself.[3]Directions were given by the President sending the matter to a full hearing. The relevant provisions of the legislation are the overriding objectives set out in Regulation 10 of the 2001 Rules and the powers of review set out in Rule 13. The facts[4]The chronology of this case is important. The Applicant had been engaged by the Respondent for a relatively short period of time on the Applicant's case that is from 12 March to 8 May 2002. The Respondents were correctly identified as Mr Anderson and Mr Weir and thus a decision was made against them jointly and severally. The Applicant presented an Originating Application on 13 May 2002 to which a Notice of Appearance was filed on 12 July 2002. With it was an indication that in listing the case for a hearing the Respondents sought indulgence on account of the availability of witnesses and the holidays of Mr Anderson. Three listings were given and were all adjourned. Once at the request of the Respondent, once because of overlisting by the Tribunal and once by Mr Anderson's unavailability due to holidays. It was made clear that he was not available on 24 October. I have seen a notice sent by the Tribunal. It is in common form to other notices undoubtedly correctly addressed to, and received by, Mr Anderson. It is contended that he did not receive notice of hearing in good time sent on 2 September 2002 advising him of the substantive hearing. He applied for a review when the decision was communicated to him. He was out of time but no point was taken about that and so in due course the Tribunal set up the hearing for 10 January 2003.[5]On 9 January Mrs Anderson phoned the Employment Tribunal. A note was taken by a clerk indicating that Mr Anderson would not be able to attend because he was on a job in France which had taken longer than was expected. The note indicated the apology of Mrs Anderson that Mr Anderson had not attended the first hearing because he was working. A postponement was sought. Mrs Anderson was advised that she should write or fax with that information. According to the itemised call log from Mrs Anderson's phone that phone call appeared to have been made at 13:29 and lasted 10 minutes and it was followed by a phone call to the Tribunal's fax machine at 15:17 lasting 34 seconds. It is said that that fax confirmed what had been said on the phone, that is that due to adverse weather conditions Mr Anderson would be unable to attend. It is asserted that he was at that moment in Spain but there was bad weather in France. He sent his apologies and asked for another date.[6]The matter came on before the Chairman and he was asked to deal first with the telephone request for a postponement. In his rejection of the postponement he said this:
"At this hearing, although the Chairman is aware of the telephone call from Mr Anderson's wife, he has received no written request for a postponement."
[7]No party has sought to adduce the fax log from the Employment Tribunal. Each side blames the other. In my judgment the Appellant is responsible for making that step. Nevertheless the Chairman did not have the written request which is now in my papers. What he did have was an explanation and yet the Chairman indicates that no explanation had been given. It is contended on behalf of Mr Anderson that an explanation was given. Whether it was sufficient to meet the needs for a postponement was something the Chairman had to deal with but it is submitted he did not. I cannot resolve whether or not the fax was received but it is clear that an explanation was being put forward which cried out for a decision by the Chairman. No decision was made on the substance of the telephone call made by Mrs Anderson. It is correctly recognised as being a factor in the exercise of discretion which has been impermissibly missed out and therefore an error of law has been committed in the balancing exercise which the Chairman was required to conduct. I accept the submission of Mr Pamesar appeaing on behalf of Mr Anderson that there is an error in that paragraph.[8]His second submission is that the Chairman committed an error in his treatment of the review. In other words the Chairman having decided to refuse a postponement then went on to consider the substance of the review. Mr Anderson was not present at the hearing of the substantive case in November. To this the Chairman said this:
"The tribunal has no evidence in front of it to suggest for example that no notice had been received by Mr Anderson of the original hearing date."
[9]As a matter of fact the Chairman did have a copy of the letter seeking a review dated 20 November 2002 in which it is asserted that Mr Anderson was not informed of the date of the hearing. This was treated as an application for review for it essentially raised a natural justice point that could be corrected most easily on review and raised issues of fact.[10]So the Chairman is, I regret to say, simply wrong when he says that there was no suggestion that the notice had not been received. The matter may not lie there. It is submitted by Mr Pamesar that the remedy which I should make available is for a rehearing of the whole case. It seems to me however that other factors were plain in the Chairman's decision. Mr Mitchell appearing for the Applicant has drawn attention to the various ways in which the absence of Mr Anderson on 24 October was explained: witnesses, holidays, working; and that in the light of his original offer that he was available on that date and would attend provided proper notice were given.[11]The Chairman obviously had in mind that the sequence of correspondence appears to have reached Mr Anderson. It seems to me that the justice of this matter requires the hearing of the application for review. Mr Mitchell makes very forceful points but they are points for the Chairman and not for me as to what Mr Anderson knew and what information was communicated to the Employment Tribunal. It is not appropriate on the simple error that I have identified in respect of the failure to attend the substantive hearing for me to treat that as an error of law vitiating the whole of the decision for as I have indicated other factors were at play in the Chairman's reasoning. I have borne in mind the importance of preserving the discretion on matters of postponement and adjournment indicated by the Court of Appeal in Andreou v Lord Chancellor's Department [2002] IRLR 728 in the judgment of Peter Gibson LJ at paragraphs 35-37, 41 and 46 who suggested that if a party who has to give evidence is prevented through no fault of his or her own from appearing there will be a breach of the right to a fair trial. That is what occurred in this case and I will remit this case.[12]It is common ground that this matter might most conveniently be dealt with by the same Chairman unless for practical reasons the Regional Chairman is unable to arrange put in this case another Chairman will hear the review. I will give some directions for this now:a. The Appellant is to seek the log of the Tribunal for the incoming fax on that day.b. Witness statements are to be exchanged. Mr Anderson and Mrs Anderson will provide witness statements.c. Mr Anderson will include in his witness statement his account of how it was he did not receive all of the sequence of correspondence and notice of the hearing and that will be done within 14 days.d. Mr Anderson will apply to the Tribunal for a hearing. It was listed as 2 hours for the application for review and it will then be heard by the same Chairman if s/he allows the review. The parties to advise the Tribunal if there is any difference.[13]The appeal is allowed.