LONDON BOROUGH OF SOUTHWARK v MR E M BARTHOLOMEW [2003] UKEAT 0730_03_1711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0730_03_1711Case No Appeal No.UKEAT/0730/03/LA UKEAT/0731/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF SOUTHWARKAPPELLANTMR E M BARTHOLOMEWRESPONDENT
Before
Mr Justice BurtonDate 17 November 2003
[1]APPEARANCES For the Appellant MR JAMES WARREN London Borough of Southwark Legal (Contract) Services South House 30-32 Peckham Road London SE5 8UB For the Respondent MR AZIZ Representative Crescent & Star Consultancy 386 Hanworth Road Hounslow Middx TW3 3SN THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by the London Borough of Southwark against a Decision of the London South Employment Tribunal chaired by Mr Zuke, which is recorded in a document sent to the parties on 25 July 2003. That document in fact contained two Decisions rolled into one. It recorded the Decision that had been made as a result of a hearing on 30 April 2003, when, on an application for a review of an earlier Decision dated 4 November 2002, it had granted that application to review, at the instance of the London Borough of Southwark, but, because that Decision had not been recorded in writing prior to the subsequent hearing, which took place on 9 July 2003, when that grant of an application for review was revoked, it also contained the reasons for the revocation.[2]It would plainly have been more sensible if the Tribunal had recorded those two separate Decisions, resulting from two separate hearings, in two separate Decisions. The first would have granted the application for review as a result of the hearing on 30 April 2003 at the instance of the London Borough of Southwark, the second would then have revoked that Decision, on further review, as a result of the hearing on 9 July. This whole set of circumstances, to which we will refer, is most regrettable and should not have occurred, and it is to be hoped, will never recur, and is a matter, so far as this Appeal Tribunal is concerned, of considerable regret as to the course that it took.[3]The Appellant (Respondent below), the London Borough of Southwark, dismissed Mr Bartholomew. The circumstances of the dismissal are not relevant to this appeal and we shall not go into them. Suffice it to say that the conduct on which the Respondent relied was alleged to be serious conduct and sufficient to justify the dismissal, and to resist the application for unfair dismissal which was brought by Mr Bartholomew to the Employment Tribunal.[4]The dismissal resulted from a letter dated 7 June 2002, which confirmed the outcome of a disciplinary hearing against the Applicant, heard on 15 and 16 April and 30 May 2002, chaired by the signatory of the letter, which was very detailed and consisted of four pages, Mr Bucknill. The letter set out the fact that there had been five charges, and, in detail, the conclusions of the disciplinary panel, which confirmed the dismissal. It also indicated that there was an available internal appeal.[5]Notwithstanding the opportunity for that internal appeal, which in fact the Applicant took, he issued, as he was entitled to do, an Originating Application in the Employment Tribunal dated 22 July 2002. The letter of 7 June 2002, on the notepaper of the Southwark Social Services Department, in which the Applicant was employed, was headed up with an address - "Adult Provider Services, the Woodmill, 19 Spa Road, London SE16 3QN" - and also with contact details for Mr Bucknill, with a telephone number, no doubt a direct line, a fax number and a personal work e mail number for him. That letter was, of course, before the Employment Tribunal at the hearing, to which we will refer.[6]The Originating Application was addressed to the London of Southwark not at "The Woodmill", but at "Woodmill Building" which is no doubt how it is described colloquially or, at any rate, is also described, but otherwise with the correct address. It appears that it did not come to the attention, and indeed the Employment Tribunal below so found, of any relevant person at the London Borough of Southwark.[7]Consequently, no Notice of Appearance was put in by the Respondent, no person dealing with the case at the Respondent having any knowledge of its existence. Equally, a Notice was sent to that same address of the impending hearing, fixed for 4 November 2002 by the Tribunal, and once again did not come to the attention of anyone relevant at the Respondent's authority for the same reason, as indeed the Tribunal found. The gentleman advising the Applicant, Mr Aziz, a consultant, was a former employee of the Respondent Council. The case came on, as we have indicated on 4 November 2002, in front of Mr Zuke and a panel, and, in the circumstances which we have described, no notice having reached the Respondent Council, no one from the Council attended. The 4 November 2002 Hearing [21 November Reasons][8]The Tribunal went ahead, in the absence of the Respondent, not only with a decision on liability, not only with a decision on remedy, but also with the making of an order for reinstatement of the Applicant, notwithstanding seeing the detailed letter of 7 June 2002, in which the nature of the charges were set out, and the reasons why the Respondent did not allow an internal appeal against the earlier dismissal.[9]The Tribunal's Decision ("the November Decision") is extremely short. Of course it was only by way of Summary Reasons, but it was given no doubt knowing that the matter would come to the attention of the Respondent, but it made no further attempt to explain the detail, as follows:
"1. This was the hearing of the Applicant's complaint of unfair dismissal. Most unusually for a local authority, the Respondent had not entered a Notice of Appearance to the complaint. In his Originating Application the Applicant gave as the address of the Respondent "
Woodmill Building …… Mr Aziz informed us this is the address of the headquarters of the Respondent's Social Services Department." We interpose to say that it appears that "headquarters" may not be an accurate designation, however it is certainly one of the main places, if not the main place, at which the business of the Social Services Department is carried on.[10]The paragraph continues:
"The Originating Application was sent to that address on 29 July. The notice of today's hearing was sent to that address on 28 August. The Respondent has not entered a Notice of Appearance or communicated in any way whatsoever with the Tribunal. 2. The Tribunal heard evidence from the Applicant. He was summarily dismissed on 30 May 2002. His dismissal was confirmed to him in a letter dated 7 June 2002 signed by Mr Bucknill the Adult Provider Services Project Manager. The address on the letter is "
The Woodmill, 19 Spa Road, London SE16 3QN. 3. Having decided that the Applicant was dismissed by the Respondent, the Tribunal was bound to find that the dismissal was unfair, as the Respondent had taken no part in the proceedings and therefore not shown a potentially fair reason for the dismissal. The Tribunal concluded that the Applicant was unfairly dismissed."[11]A number of matters appear from those paragraphs,(1) that the Tribunal noted and understood that it was indeed unusual for a local authority not to enter a Notice of Appearance.(2) That there was a minor difference in the address to which the Originating Application and the Notice of the hearing had been sent from that which was on the letter, and,(3) that there was such a letter, which both contained more details than the address, including the contact numbers and e mail for Mr Bucknill, and an indication that there was material which might have been relevant in opposition to a claim for unfair dismissal.[12]Although it may be technically the case that the Tribunal, where there is no appearance put in, is not obliged to have regard, as it otherwise would, to the contents of such a Notice of Appearance, even if a party does not thereafter attend at the hearing, nevertheless, as a matter of reality rather than procedure, it would at least have put the Tribunal on notice that this was a case in which, particularly as there was an ongoing internal procedure, it would have been expected that the Respondent would at least have wished to have taken some position. As we have indicated, the Tribunal went on to decide that there ought to be reinstatement, and at paragraph 9 of the Tribunal's Decision, it concludes:
"Having regard to the address on the Respondent's letter of 7 June, Mr Aziz agreed that the Tribunal should address further correspondence to the Respondent at that address, which differs in only a minor respect from the address given by the Applicant."
[13]There is a note in Harvey on Industrial Relations and Employment Law, at paragraph T829. That sets out what the editors of Harvey plainly consider to be not only the normal but the proper practice in the event of an appearance by a respondent, or indeed an applicant, at a hearing. The passage reads as follows:
"In practice, when a party fails to appear at the hearing, the tribunal clerk will endeavour to contact him by telephone at his last known address and enquire whether or not he intends to appear. If he does so intend, and is able to get to the tribunal within a reasonable time, the tribunal will ordinarily stand the case back until he arrives. However, if as a result of a delay, the case does not finish within the day and has to be further adjourned, he is likely to have an order for costs made against him under rule 14(4), unless he has a valid explanation for the delay. If he intends to appear, but is unable to do so on that day for a good reason, then the appropriate order is to adjourn the case to a future date …… If, on the other hand, he indicates that he does not intend to appear, the tribunal will generally dismiss the case, if the absent party is the applicant, and award costs under rule 14(1), or, if the absent party is the respondent, it will hear the case in his absence and, if the applicant is successful, perhaps award costs against the respondent."
[14]It is to be noted that no costs were awarded against the Respondent on this occasion. It is quite manifest that that practice, which is set out by Harvey , is not only what ought to occur but what ordinarily does occur and we expressly approve it. Mr Aziz himself, in his submissions to us, indicated that in his experience, appearing as a consultant in the Tribunals, that is ordinarily, although he says not universally, the practice. If it is not universally the practice, it should be. It is certainly the practice of this Appeal Tribunal that, if a party is not here when the case is called on, the case will not automatically proceed in the absence of the party; and we are in the situation in which the remedy of the Appeal Tribunal, if the party does not appear, is to proceed to decide the matter on the papers, which is what we ordinarily do, rather than to dismiss the appeal. The position at the first instance Tribunal is consequently far more drastic if it means that the result is that the application is either dismissed or granted summarily. Of course, the Employment Tribunals must protect themselves from incompetence and disregard by parties, and it is sadly very often the case that one party or the other will have decided not to take part, not to proceed with or not to oppose an application, and, consequently, not turn up, no doubt just as GP surgeries have many un-complied with appointments; but there must be a compromise, and Harvey records what it is, between insisting on going ahead willy nilly at exactly the time specified, and giving at least some opportunity to find out why a party has not attended.[15]The course which we follow at this Appeal Tribunal is for a telephone call to be made to the available telephone numbers, no doubt including a mobile number nowadays very often, in relation to unrepresented litigants, to see whether there is someone answering the telephone or at any rate an answerphone message, and usually the position will then be that, if there is no response, no one at home, no one answering the telephone, the Tribunal will continue, but sometimes it is discovered that people are delayed in public transport, not being able to get to a telephone to phone in and that they come in a little later. Sometimes it is discovered that they have no intention of attending, but that is not at all the most frequent situation, and, of course, the Appeal Tribunal, just like an Employment Tribunal, will then have to continue, after a short break and do the best it can. It would be likely to deal with liability, and possibly even with compensation: but it would be wholly inappropriate for a 'default' reinstatement order to be made also, at least without proper consideration of the matters that are contemplated in section 116 of the Employment Rights Act 1996 , including subsection 1(c), namely whether it would be just to order reinstatement when the applicant may have "caused or contributed to some extent" to his dismissal.[16]What is wholly impermissible, in our judgment, is for the Tribunal to record that it is "unusual" for a local authority not to attend, and yet not to take any steps to find out whether there has been an oversight, particularly where telephone numbers and e mails are available on the very document before the Court; and it appears to us quite plain that all this process which has subsequently occurred, which we shall now be describing, would not have occurred if there had been such a call originated by the Employment Tribunal to the Council. This is not a question of an unrepresented litigant whose phone might not have been answered; there would have been an immediate response by the Council, and the whole position would have been speedily dealt with, possibly even by the matter being capable of being dealt with on the day, or more likely by virtue of there being an adjournment.[17]That did not occur, and what appears to have subsequently happened is that Mr Aziz was in contact with the Appellant in relation to another matter on the next day, 5 November 2002. It appears that in that same conversation there was also discussion in relation to the proposed internal appeal of the Applicant, which was then scheduled to take place on 6 November, so it may be that that call was also intended, in any event, to deal with arrangements for that meeting; but at any rate, in the course of that conversation Mr Aziz disclosed to the Appellant's solicitors the fact that there had been the hearing and Order on the previous day. Immediately the Respondent got in contact with the Tribunal, and no suggestion is made that the Appellant's solicitors did not act with extreme diligence thereafter.[18]The Summary Reasons were issued on 21 November 2002; on 26 November the Appellants requested Extended Reasons, and on 28 November Extended Reasons were declined, on the basis that the Appellant was not entitled to them because no appearance had been entered, but the Originating Application and the Notice of Hearing were supplied, in addition, of course, to the Summary Reasons for the Decision which had already been supplied. The next day, on 29 November 2002, the Appellant wrote to the Employment Tribunal seeking a review of the November Decision made in the absence of the Respondent, and the application for there to be a review was granted on 10 September 2002, and a hearing of it fixed for 21 February.[19]The Appellant issued a protective Notice of Appeal to the Employment Appeal Tribunal on 20 December 2002, and that appeal was stayed by this Appeal Tribunal on 24 February pending determination of the application for review. The date of 21 February 2003 was apparently adjourned by the Tribunal itself to 30 April. That was the date of hearing of the application for review to which we referred at the outset of this judgment. The 30 April 2003 Hearing [25 July Reasons][20]As we have indicated, there were, at the time, no written Reasons given in relation to that hearing, but what occurred is clear from the Decision which did subsequently follow, and was delivered to the parties on 25 July 2003. The Tribunal concluded, it seems, that, notwithstanding the slight error in the address, the notice of hearing was "correctly addressed", and thus that there had been service of the proceedings on the Respondent.[21]The Respondent had brought its application for review under Rule 13(1)(b) and we should read Rule 13(1) at this stage:
"1) Subject to the provisions of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that - ….. (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; ….. (e) the interests of justice require such a review."
The Appellant, at the hearing ["the April hearing"], made it plain that it wished to apply for review not only under Rule 13(1)(b) but also under 13(1)(e). There was, it seems, an erroneous reference in the application for review to Rule 14(4) and Mr Uduje, of Counsel, who appeared at that hearing, as he has before us, applied for leave to amend so as to make an application for review under Rule 13(1)(e), submitting that the reference in an earlier letter to Rule 14(4) was a typographical error. The Tribunal records that Mr Aziz expressed some reservations about the amendment, but the Tribunal decided to give leave for an application for review to be made on that ground, that is Rule 13(1)(e) in addition to Rule 13(1)(b).[22]Paragraph 3 then recites the whole of the account we have of the Tribunal as to what happened on that day, and it reads as follows:
"The Respondent presented its case by way of an unsworn statement from Mr Warren, the person who had conduct of the Respondent's case. The gist of Mr Warren's statement was that mail was delivered to the Respondent's premises at 19 Spa Road but on occasions it may go astray in the internal post. The Tribunal heard argument about the effect of rule 13(4) and we were referred to the decision of the Employment Appeal Tribunal in Zietsman and Another -v- Stubbington [2002] ICR 249 ."
This we were told today was a decision that was put forward by Mr Uduje to the Tribunal, pursuant to his obligation to do so, but to be distinguished, as he submitted, on the basis of his submissions. It is a case in which the Employment Appeal Tribunal had concluded, in relation to an application under Rule 13(1)(b), or its then equivalent, that, notwithstanding the fact that one of two partners had not in fact received notice of the Originating Application and the hearing, nevertheless it was a case in which he should not be entitled to a review, because the reason why the proceedings had not reached him was due to his own fault. There was no reference in that case at all to any other sub-paragraph of what was then Rule 11 and is now Rule 13.[23]The Tribunal continued, in paragraph 3:
"Having considered the case put forward by the Respondent and the submissions of the parties, the Tribunal decided that the Originating Application had been correctly addressed to an office of the Respondent" [They make no finding there, we note, as to whether such office was the headquarters of the Respondent, if in fact that was what was necessary] "and was therefore deemed to have been delivered. We found that this presumption was not rebutted by Mr Warren's statement because he confirmed that sacks of mail are delivered to 19 Spa Road. The Tribunal therefore decided that the application for review under Rule 13(1)(b) failed. The Tribunal went on to decide that it was in the interests of justice to review its earlier decision because we accepted that the Originating Application had not come to the attention of a person in authority."
[24]Apart from the fact that it appears that the Tribunal made an order for costs on that occasion, which is not further referred to in the body of the Reasons, save collaterally in respects to which we shall refer later, there is no other reference to what occurred at that hearing; and it is plain that that last sentence at paragraph 3 was the conclusion, the unanimous conclusion, of the Tribunal on that date. The necessary consequence of such a finding is that the November Decision was an unjust decision, because it was concluded that it was in the interests of justice to review it.[25]It appears that, at some stage subsequent to the April hearing, the Chairman concluded that that was a conclusion to which the Tribunal could not come, because of the provisions of Rule 3(3)(c) of the Employment Tribunals Rules. Rule 3(3) reads as follows:
"(3) A respondent who has not entered an appearance shall not be entitled to take any part in the proceedings except - (a) to apply under rule 17 for an extension of the time appointed by this rule for entering an appearance; …..

(c) to make an application under rule 13(4)(1)"

The Tribunal wrote in May 2003 to the parties, giving notice that, of its own motion, it proposed to review its decision given to the parties orally on 30 April 2003, on the grounds that the interests of justice required such a review. The Tribunal suggested that the effect of Rule 3(3)(c) of the Employment Tribunals Rules was that the Tribunal did not have jurisdiction to review its Decision pursuant to Rule 13(1)(e) and the Tribunal indicated that if a party wished to show cause why there should not be a review of that review, it should send its reasons in writing within fourteen days. The 9 July 2003 Hearing [Also 25 July Reasons][26]The Appellant, by letter dated 15 May, indicated that it concluded that there should not be a further review of the review, and that the decision to review should stand, and the Respondent took the opposite position. The full merits hearing of the unfair dismissal claim which had been fixed, as a result of the original review being allowed, for 1 July, and which would thus have most likely been long concluded but for all this, was then cancelled; and the new review hearing was to take place on 9 July 2003. Reasons in respect of the April and July hearing, incorporated into one and the same document, as referred to above, were sent to the parties, as we have indicated, on 25 July 2003. They record in paragraph 6 submissions that were made to it, or at any rate some of them; and in particular Mr Uduje was seeking to argue, according to paragraph 6, that, notwithstanding Rule 3(3)(c), there was power for an application to be made by a party who had not put in a Notice of Appearance under 13(1)(e), on the back of an application under 13(1)(b).[27]It is clear, from what we have been told by Mr Uduje, and not dissented from by Mr Aziz, that Mr Uduje did also make two other submissions; one was that, in any event, the Tribunal should make or uphold its April Decision under 13(1)(e), and secondly, Mr Uduje had a draft Notice of Appearance, which he would have sought to have put in out of time under Rule 3(3)(a). Neither of those two points are specifically addressed by the Tribunal in paragraph 6, in which the submissions of Mr Uduje are summarised. The short conclusion at paragraph 7 is as follows:
"The result is that we revoke our decision of 30 April on the grounds that it is in the interests of justice to do so, that decision having been made without jurisdiction. The result is that our decision of 4 November is confirmed. The Order for Costs made on 30 April is not affected."
In paragraph 7 submissions to the contrary in relation to the order for costs, which Mr Uduje has told us he does not accept accurately record his submissions, are set out.[28]The result of all that, apart from causing a very considerable amount of delay, is manifestly wholly unsatisfactory. There was a Decision by the Tribunal, unrecorded at the time, but there is no doubt that it was made, because it is subsequently recorded in paragraph 3 of the Reasons of 25 July, that it was in the interests of justice to review the November Decision. The only basis on which that April Decision was purportedly revoked was a conclusion that the Applicant had not been entitled to make an application to that end under Rule 3(3).[29]We do not propose to consider the following matters which either were or could have been canvassed, either before the Tribunal or before us:(1) A way round the alleged difficulty which the Tribunal perceived under Rule 3(3) would have been to allow an extension of time under Rule 3(3)(a), notwithstanding the fact that the November Decision had been entered, to allow a Notice of Appearance to be put in, thus validating or enabling an application to be made under 13(1)(e). This was not addressed by the Tribunal, although we understand it was at least in part before it. There is no authority which we know of which would need to have been considered in any event, as to whether there can be an extension of time for the Notice of Appearance notwithstanding that a default judgment has been given in the meanwhile; on principle, we can see no particular reason why that could not be the case, but we make no decision about it.(2) For some reason it does not appear to have been argued below, and therefore would not be appropriate to be argued before us, that this would have been a case in which, in any event, Rule 13(1)(c) would have been applicable, namely that the November Decision was made in the absence of a party.(3) Mr Uduje has raised on this appeal issues as to whether the Tribunal was in any event right to make the decision it did, under Rule 13(1)(b), not simply by virtue of the minor, but nevertheless accepted, difference between the address on the Notices and the actual address, but also by reference to whether in fact, in relation to this case, the deeming provisions of Rule 23(4)(e)(ii) were correctly applied by the Tribunal. That sub-rule reads as follows, in relation to validating or enabling Notices to be sent by post:
"In the case of a notice or document directed to a party …… if no such address has been specified …. to any other known address or place of business in the United Kingdom or, if the party is a corporate body, the body's registered or principal office in the United Kingdom, or, in any case, such address or place outside the United Kingdom as the President or a Regional Chairman may allow;"
Mr Uduje would have submitted that the Council was a corporate body, and that the building was not its registered or principal office. We express no views on any of those matters.[30]Leaving aside all those possibilities, what appears to us, however, to be abundantly clear is that, once the Tribunal came in April to the decision that it did, that it should set aside the November Decision in justice, it should not have set aside that April Decision simply on the grounds to which it referred, that the application was not entitled to be initiated by the Respondent, pursuant to Rule 3(3)(c). In our judgment, once it had made that conclusion, which is recorded in the last three lines of paragraph 3 of its Reasons - and we repeat them again: " The Tribunal went on to decide that it was in the interests of justice to review the Decision of 4 November 2002 because we accepted that the Originating Application had not come to the attention of a person in authority" - it could not possibly, in our judgment, justly revoke that April Decision on the procedural ground which it itself, of its own motion, had raised. The Tribunal, of its own motion, is entitled to review an earlier Decision under Rule 13(1)(e). Once it had come to the conclusion it did, albeit at the instance of the Respondent, that the November Decision required to be revoked on that ground, then it could and should have upheld that conclusion, no doubt after first giving the opportunity for the Applicant to make any submissions, of its own motion .[31]Mr Aziz has submitted that the only circumstance in which Rule 13(1)(e) came to the attention of the Tribunal at the April hearing was as a result of an application, and, indeed by way of a late amendment of that application, which the Appellant was, in fact, although no one appreciated it at the time, unable in law to make. That may be the case, and if Mr Aziz, although we do not in any way blame him, had objected to the making of the application on the grounds that it was not open in law to be made at the instance of the Appellant, or if the Chairman had picked up the point at the time, then no doubt the application on that basis would have been refused; but nevertheless, the matter would have been before the Tribunal for the Tribunal to address of its own motion, or, of course, it may be that at that stage, had the point been taken, Mr Uduje would have made the alternative application, which appears to us to have been open to him, under Rule 13(1)(b). But the fact is that the point was not taken, and, the matter having been considered by the Tribunal, it reached the conclusion which we have recorded; and it appears to us that it is inconceivable that, as the Tribunal was thus of the opinion that the November Decision should be set aside, it would not and should not therefore have upheld that April Decision of its own motion, once it appreciated that the original application should not have been made at the instance of the Appellant, rather than, of its own motion, resuscitating and leaving unreviewed a Decision which it had itself concluded to be an unjust one. What it was prepared to do of its own motion, namely revocation of the April Decision, can be, and should rather have been, done of its own motion, namely revocation of the November Decision, in the light of its own conclusions on 30 April.[32]Mr Aziz, recognising the force of that argument, despite a spirited but inevitably hopeless argument to the contrary, has sought to put forward, on the principle that no doubt attack is the best form of defence, a cross-appeal. He soon recognised that, given the finding by the Tribunal at paragraph 3 to which we have referred, this appeal was inevitably likely to succeed, but he then sought to challenge the finding, to which we have referred, and he sought on his feet to articulate a cross-appeal. In essence he sought to submit that the finding by the Tribunal that it was "in the interests of justice to review its earlier Decision", because it "accepted that the Originating Application had not come to the attention of a person in authority", could and should be attacked on the basis that it was erroneous in law. He would have sought to have referred to Zietsman and another -v- Stubbington , the case which was referred to by the Appellant below. That case, as we have indicated, does not address Rule 13(1)(e), but simply addresses a case in which an Appellant was not allowed to rely on the equivalent of Rule 13(1)(b). He would have wished to submit that, as a matter of law, the Tribunal cannot allow under Rule 13(1)(e) what it would not have allowed under Rule 13(1)(b).[33]We did not grant him permission to amend his answer to add a cross-appeal out of time; we were quite clear that such an application was hopeless. The following matters, inter alia, form part of our Decision:-(1) He did not seek to raise on the review hearing on 9 July any argument that the April Decision, which the Tribunal was raising for re-consideration of its own motion because of the procedural point, should in any event be reviewed on the basis that it conflicted with the Zietsman case. No such argument was run by him, when he plainly could have done so.(2) In fact he did not raise that argument at all below in either of the two review hearings, i.e. he also did not seek to argue in April against the application of Rule 13(1)(e), on the basis that it offended against Zietsman , notwithstanding that Zietsman was being positively referred to by the Appellant.(3) He did not put in a cross-appeal against the Decision of 25 July, or indeed the unrecorded April Decision, in time or at all. That is of some significance now under our practice because it means that there was no consideration of such a cross-appeal on the Sift, which might have led to a decision under Rule 3 of the Employment Appeal Tribunal Rules, or possibly to there being a preliminary hearing of the cross-appeal. There is no assumption, under our present practice, that a cross-appeal goes forward to a full hearing, just because an appeal has. In any event, this would in essence for an entirely independent cross-appeal, appealing largely, if not wholly, the original Decision of 30 April, which of course is not being appealed by the Appellant, save as a fall-back, and thus ought to be considered by reference to the same timescale as is expected of an appellant, namely six weeks, and far more than that time has passed before this point is raised for the first time. In any event, of course, there was an Order of this Tribunal, of which the Applicant was in breach by not bringing forward his cross-appeal until now, namely the Order of His Honour Judge McMullen QC, of 22 September 2003, which reads: "Within 14 days of the seal date of this Order the Respondent must lodge with the Employment Appeal Tribunal and serve on the Appellant an Answer, and if such Answer include a cross-appeal shall forthwith apply to the Employment Appeal Tribunal on paper on notice to the Appellant for directions as to the hearing or disposal of such cross-appeal."(4) It is apparent to us that the cross-appeal would, in any event, have been without merit. There is no basis on which Mr Aziz could say that the Zietsman case in any way prevents the Tribunal from making an Order under Rule 13(1)(e). The highest that can be said is that it is a matter which ought to have been taken into account in the exercise of a Tribunal's discretion, under Rule 13(1)(e); and, given that the case is actually referred to by the Tribunal in the same paragraph as its conclusion, it is difficult to see that it can be said that it did not at least have it available to be considered, if not fully in mind. We are therefore satisfied that there is no basis on which this application to amend, even if there were a document containing it, for which there is not, by way of a cross-appeal way out of time could or should be considered, and we refuse such application.[34]That aside, the only basis on which Mr Aziz was able to argue against the powerful case put forward for the Appellant was that, given that the Tribunal made an order for costs against the Respondent, it ought not to have concluded, or at any rate was justified in revoking the conclusion, that it was in the interests of justice to review the November Decision. That, plainly, is a matter which in itself ought to have founded a cross-appeal but, if anything, it falls because it is a mere challenge to the exercise of a discretion by the Tribunal, and it is quite plain that the Tribunal must have had in mind the fact that it was going ahead to make an order for costs, and at the very least was critical of the Appellant, when it made the revocation Order that it did, at the April hearing.[35]Once it had made that order, the only basis on which it subsequently sought to revoke it was not on the basis of any reconsideration, which was not even urged on it by Mr Aziz, but on the basis of its erroneous conclusion that it had no jurisdiction to retain it in place. We are entirely satisfied that the Tribunal had the plainest possible jurisdiction to retain in place the order that it had made, as a result of the conclusion that it had come in the last sentence of paragraph 3, namely that of its own motion, it should in the interests of justice review under Rule 13(1)(e) the November Decision. We therefore allow the appeal and hope that this never recurs.[36]So far as the other matter is concerned, which has been raised by Mr Uduje, namely the question of costs, because of the unfortunate way in which the two decisions were rolled up into the one set of Reasons, it is in fact the case that there is no record of the original order for costs, we are told in a sum of £700, in any document. All that we have is the judgment of 25 July 2003, relating to both decisions, in which it is said that the order for costs made on 30 April, whatever it was, is "not affected" at paragraph 7 and is "undisturbed" at paragraph 8. That means that there is a breach of Rule 12(2) of the Employment Tribunals Rules, which reads as follows:
"The decision of a tribunal, which may be given orally at the end of a hearing or reserved, shall be recorded in a document signed by the chairman"
But quite apart from any such technical breach, which of course could of itself be made good, no reason is given in the July Reasons that we have seen for the grant of such costs in that sum, or any sum. We have no idea whether that £700 found figure was incurred by the Applicant as a result of whatever conduct it is that the Tribunal are seeking to penalise; but in any event, we are unclear as to the basis on which the Order for Costs was made. By Rule 14 (1) the Employment Tribunal Rules provide: "Costs 14. - (1) Where, in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably …. , the tribunal shall consider making ….[Orders for costs][37]We are told by both parties that the reason for the making of the Costs Order must have been the view that the Tribunal had taken, against the background of the fact that Zietsman is referred to in its decision, that there ought to have been some system for ensuring that documents of this kind were brought to the attention of the relevant person, notwithstanding the absence of the kind of detail in the address which featured on the letter of 7 June 2002. But be that so, there is no indication of whether and in what respect the Tribunal concluded that any conduct of the proceedings was "vexatious, abusive, disruptive or otherwise unreasonable", and without any such reasons given by the Tribunal, we are unable to consider the matter ourselves.[38]In those circumstances, we conclude that this question, namely whether costs should be ordered, in whole or in part, against the Respondent, arising out of the application that was required to be made for review of the November Decision, and that matter must plainly be considered in the confines of Rule 14, and from scratch. Plainly it would not be proportionate for there to be a separate hearing of that matter, but it can no doubt be tagged on to whatever other further hearing now ensues.[39]We allow the appeal on both heads, direct that the Applicant's claim for unfair dismissal and any claim that he may make for costs arising out of the application for review, dated 29 November 2002, be remitted and referred to the appropriate Employment Tribunal, but we conclude that the proper course now is that the matter be dealt with by a different Employment Tribunal.