MADINA HOUSE TRUST v MISS S ADAWI [2004] UKEAT 0997_03_2109

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0997_03_2109Case No Appeal No. UKEAT/0997/03/SM & UKEAT/0152/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MADINA HOUSE TRUSTAPPELLANTMISS S ADAWIRESPONDENT
Before
Her Honour Judge Wakefield Mr I Ezekiel Baroness M T ProsserDate 21 September 2004
[1]APPEARANCES For the Appellant MR M H A THOMSON (of Counsel) Instructed by; Messrs Noden & Co Solicitors 248 Ladbroke Grove London W10 5LT For the Respondent No Appearance or Representation By or on Behalf of the Respondent SUMMARY Practice and Procedure Procedure – striking out and debarring HER HONOUR JUDGE WAKEFIELD This is an appeal by Madina House Trust against a Review Decision of an Employment Tribunal sitting at London (Central) on 25 September 2003. The Decision confirmed a Striking Out Order made by the Chairman of that Tribunal on 4 July 2003. By that Order the Appellant's Notice Of Appearance was struck out and the Appellant, who was the Respondent before the Employment Tribunal, was debarred from defending the claims of Miss Samira Adawi that she had been unfairly dismissed and had not received notice pay nor pay statements.[2]There is also before us today a cross appeal by Miss Adawi, by which it is claimed that the Employment Tribunal was wrong to have reviewed the earlier Striking Out Decision.[3]Following the confirmation of the Striking Out Order, the Employment Tribunal held a substantive hearing of the merits of Miss Adawi's complaints on 28 November 2003 at which Counsel for Madina House Trust was denied any participation. The Employment Tribunal, by a decision with Extended Reasons promulgated on 9 December 2003, held that Miss Adawi had been unfairly dismissed, dismissed in breach of contract and that Madina House Trust had failed to provide her with itemized payslips. Compensation, overall in excess of £24,000, was ordered. An appeal against that Decision has been consolidated with an appeal against the Review Decision and is also therefore before us today.[4]Also for determination today is an application by Miss Adawi that paragraph 5 of an Order of this Employment Appeal Tribunal, made on 23 March 2004, be varied or revoked. By that part of the Order the Appellants were given leave to adduce into evidence at this appeal two affidavits of Miss Khanam Hassan.[5]The relevant background facts to all these matters can be shortly set out. The Originating Application was presented to the Tribunal on 17 February 2003 and a Notice of Appearance was entered by the present Appellants on 14 March. On 15 April 2003, the Tribunal made an Order that certain documents requested by the Applicant be produced by the Appellants for inspection by the Applicant on or before 29 April. The Order contained the usual warning as to possible consequences of non-compliance. Some, but not all, of the documents were produced in compliance with the Order and the Applicant applied to the Employment Tribunal to impose sanctions.[6]On 16 May 2003 the Employment Tribunal wrote to the Appellants warning of possible strike out and debarring, under Rule 4 (8) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 , and inviting reasons why this should not be done. On 23 May 2003 the Appellants supplied some further documents and asked the Employment Tribunal for further time to complete production.[7]By 4 June 2003 only the deduction working sheet, the P11, and the disciplinary procedure had not been supplied, and the Applicant then made an application to the Employment Tribunal again asking that the Notice of Appearance be struck out. A further warning letter was sent to the Appellants by the Employment Tribunal on 17 June. On 4 July, no substantive response having been received from the Appellants, the Strike Out and Debarring Order was made.[8]By a letter dated 21 July 2003, the Appellants requested a review of that Order. The outstanding documents were all provided with a covering letter dated 11 August 2003, that is to say the P11 and the disciplinary code. The Review was, it appears from paragraphs 1 and 2 of the Extended Reasons for that Decision, granted on the grounds that the interests of justice required it and in order to allow argument on both sides.[9]The arguments put forward at the Employment Tribunal by the Appellant's representative, against whom the Appellants have subsequently made detailed allegations of incompetence and failure properly to keep them informed, were not particularly impressive and they are set out at paragraph 4 of the Extended Reasons for the Decision. That paragraph says:
"4. The Respondent's representative put forward the following arguments in favour of revoking the decision to strike out the Notice of Appearance: (i) The Respondent's bookkeeping was inefficient and their Solicitors had done their best to comply with Tribunal directions and indeed did produce most of the documents requested, although not all. (ii) Matters were further complicated by the hiatus caused by the Respondent's file being transferred from one solicitor's firm other in order to be retained by Mr Dunitz when he moved firms. He was on holiday for 2 weeks during late April before the move. (iii) The Respondent has a good defence and the interests of justice require that it be allowed to be heard."
[10]The Employment Tribunal clearly concluded that these reasons were inadequate to explain the failure to comply with the Order. They said, in their paragraphs 7 and 8: 7. The Tribunal unanimously concluded that the interests of justice require that the strike out Decision should be confirmed because: a) The Respondent's repeated non-compliance with Tribunal directions, without good reason being shown, has caused considerable delay in the Applicant's claim being heard. This is contrary to the interests of justice. b) The Respondent, and/or their representatives in failing to comply with Tribunal directions have disregarded their duty under Reg 10 of the Employment Tribunal Regulations 2001 to assist the Tribunal in furthering the overriding objective to deal with cases justly, that is expeditiously, fairly, proportionately and as far as possible saving expense. c) No good reason has been shown for the Respondent's failures in these respects, nor why the strike out should be overturned. d) The confirmation of the Tribunal's decision to strike out the Notice of Appearance does not leave the Respondent without remedy should it transpire that it was one or both firms of their solicitors, rather than the Respondent itself, which was responsible for non-compliance with Tribunal directions. 8. Accordingly, the Tribunal unanimously confirmed the previous Tribunal's Decision dated 4 July 2003 to strike out the Notice of Appearance and debar the Respondent from defending these proceedings.[11]In the Grounds of Appeal against this Decision, it has been pointed out that nowhere in the Extended Reasons does the Employment Tribunal address two questions which are fundamental to any decision to strike out under Rule 4 (8), the first of these being: notwithstanding any failures by the party whose conduct is being criticized, can there still be a fair trial of the issues? Only if there is a real or substantial risk that a fair trial is not possible should a party be debarred from taking part in the proceedings. Secondly, the question should be asked: is the sanction proportionate to the failures which have been identified? It must be remembered that by the time of the Review Decision, all the required documents had in fact been served. We have been referred to the cases of Bolch v Chipman [2004] IRLR 140 and Profile Analysis Ltd v Cassidy (EAT/0586/03 & EAT/0587/03). These in particular illustrate the requirement of such tests before any discretion to strike out is exercised.[12]We have been persuaded that in the Extended Reasons for this Decision there is no indication that these matters were properly addressed. We are therefore satisfied that this Review Decision cannot stand. It is not for us to determine how, the right questions having been asked, the discretion of the Employment Tribunal would be exercised. The appeal against the Decision is therefore allowed. The Review Decision is set aside and the matter is remitted to a differently-constituted Employment Tribunal for a Review of the Strike Out Order.[13]As to the cross appeal, this is dismissed. We are satisfied that the Employment Tribunal was entitled in the interests of justice to review the Strike Out Order, which had been made without full argument.[14]Finally, as to the appeal against the Decision on the merits, that appeal is stayed pending the outcome of the Review. The application of Miss Adawi to vary or revoke paragraph 5 of the Order of this Employment Appeal Tribunal as to new evidence is also stayed, that being relevant to that other appeal. Given the overall delay in the resolution of this Originating Application, we hope that the Employment Tribunal will be able to re-list the Review expeditiously.