S Tamborrino v. M Kuypers [2005] UKEAT 0483_05_1310

EAT
S Tamborrino v. M Kuypers
[2005] UKEAT 0483_05_1310 · 2005-10-13
[1]The Claimant, Miss Tamborrino, commenced these proceedings in the London (Central) Employment Tribunal by an Originating Application presented on 2 July 2004. She named as Respondents(1) Matthew Kuypers and(2) Scope Vision. Her complaints were of unlawful deductions from wages and sex discrimination.[2]Scope Vision was never served and the claim against that Respondent was withdrawn on 8 November 2004. On 4 October, Mr Kuypers wrote to the Tribunal, having received the Tribunal's letter dated 1 October, stating that although he was not resident in the UK and was unable to attend a hearing fixed for 5 October, he was more than willing to defend the claim. It appears that he has instructed solicitors, Metro Law, but by letter dated 22 September 2005, Mr Stuart Garcia of that firm has indicated that he will not take part in this appeal.[3]The hearing listed for 5 October did not take place due to the lack of an available Tribunal to hear the matter and the case was listed for hearing before a full Tribunal, chaired by Mr David Pearl, on 8 November. At 8.44 a.m. that day, a fax was received in the Tribunal office from the Claimant's representative, Roisin Overton, of the Islington Law Centre. It read:
"Dear Sirs Re: Miss 5 Tamborrino -v- Mr M Kuypers – Case No. 2202784/2004 I refer to the above matter which is due to be heard this morning. I would advise that I have spoken to the Claimant this morning and have been verbally informed that Miss Tamborrino wishes to withdraw her claim from the Employment Tribunal. The Claimant has, in the past week, undergone a medical procedure which has caused her pain and upset and she is additionally finding the Tribunal process very emotionally upsetting. The Claimant will not be attending the Tribunal this morning, although the Claimant's representatives will be attending to inform the Tribunal of the Claimant's withdrawal. I do not yet have the Claimant's written instructions on this matter, but as soon as they are to hand, I will confirm this with the Tribunal"
. That faxed letter was not immediately drawn to the attention of the Chairman and members of the Tribunal. At 10 a.m., the time fixed for the hearing, the Claimant herself had not arrived but Counsel instructed on her behalf, Miss Smith, was in attendance, as was Mr Garcia, although the Respondent had not entered an appearance to the claim.[4]Miss Smith applied for a postponement. Before the Tribunal ruled on that application, the Claimant arrived at 11.07 a.m. The Tribunal was minded to grant the postponement, it having been made clear that the Claimant wished to proceed against Mr Kuypers only. By 11.47, the Tribunal had informed the parties orally of the Orders which they were inclined to make. Those were postponing the hearing and also directing the parties further to specify their various applications in writing to the Tribunal.[5]It was then that, for the first time, the Tribunal was shown a copy of Miss Overton's fax received earlier that morning. The Chairman, it appears from his later review judgment and reasons, raised the question of the application of Rule 25 of the Employment Tribunal Rules & Procedure 2004 in the light of the contents of that faxed letter. Counsel for the Claimant was then permitted to make submissions on the effect of that letter, Counsel making it clear that on instructions, the Claimant did not wish to withdraw her claim against Mr Kuypers as opposed to Scope Vision.[6]The Tribunal ruled that the effect of the faxed letter was to withdraw the claim under Rule 25. The language of the letter, they held, was unconditional. It was a valid written withdrawal under Rule 25. Accordingly, the Tribunal had no jurisdiction to entertain the claim against Mr Kuypers. The withdrawal of the claim against Scope Vision also stood and no issue arises in relation to that withdrawal before me. The Tribunal's judgment with reasons was promulgated on 18 November.[7]The Claimant did not appeal that judgment. Instead, through her representatives, she made application for review on 2 December. That application was considered by the Chairman alone who, by his review judgment with reasons promulgated on 23 December, summarily dismissed the application under Rule 35(3), that is on the basis that, in his view, there was no reasonable prospect of the original decision being varied or revoked. It is against the Chairman's review judgment that this appeal is brought. Withdrawal[8]Rule 25 of the 2004 Tribunal Rules are more detailed than those in preceding Rules. Whereas, for example, Rule 15(2)(a) of the 2001 Rules provided simply that a Tribunal may dismiss proceedings if, at any time, the Claimant gave notice of withdrawal, Rule 25 provides, so far as is material:
"(1) A Claimant may withdraw all or part of his claim at any time. This may be done either orally at a hearing or in writing in accordance with paragraph (2). (2) To withdraw a claim or part of one in writing, the Claimant must inform the Employment Tribunal office of the claim or the parts of it which are to be withdrawn. Where there is more than one Respondent, notification must specify against which Respondents the claim is being withdrawn. (3) The secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal office, in the case of written notifications, or the Tribunal in the case of oral notifications, receives notice of it and where the whole claim is withdrawn, subject to paragraph 4, proceedings are brought to an end against the relevant Respondent on that date. Withdrawal does not affect proceedings as to costs, preparation and time or wasted costs."
[9]In this appeal, Mr Ohringer submits that upon a proper construction of the faxed letter sent on 8 November, it did not amount to written notification on withdrawal of the Claimant's claims against both Respondents. I accept that submission. Looking at the document itself(1) it does not identify which claim or claims against which Respondent is or are withdrawn: see Rule 25(2);(2) the fax indicates that the Claimant wishes to withdraw her claim from the Tribunal but adds that her representative does not yet have the Claimant's written instructions. That indicates to me that, at the stage when the fax was sent, the Claimant's representative did not have her formal instructions to withdraw the claim;(3) Rule 25(3) allows for withdrawal by two methods: (i) written notification in which case the withdrawal is effective when received at the Employment Tribunal office and (ii) oral notification to the Tribunal itself. It is plain on the face of the faxed letter that Counsel would be attending to inform the Tribunal of the Claimant's withdrawal. However, Counsel did attend and indicated that the Claimant wished to proceed. On that basis, the Tribunal was minded to postpone the hearing and give case management directions. There was no oral notification of withdrawal. In my view, the original Tribunal overlooked the distinction between written and oral notification of withdrawal contained in Rule 25(3).[10]In these circumstances I disagree with the original Tribunal decision to treat the whole of the Claimant's claims as effectively withdrawn under Rule 25(3) so that the Tribunal had no jurisdiction to further entertain them. Review[11]In light of those findings, I should have allowed an appeal against the Tribunal's original judgment, had that judgment been under appeal; but it is not. The present appeal is solely against the Chairman's review judgment. In that judgment the Chairman expressed the view that, having ruled on the withdrawal question in the first judgment, that ruling could only be challenged on appeal, not by way of review. It seems to me that that view is unduly restrictive, given the introduction of the overriding objective of the rules, initially in the 2001 Rules, now repeated in the 2004 Rules, to enable Tribunals to deal with cases justly.[12]The introduction of that amendment to the Rules in 2001 was considered by the EAT, Hooper J, presiding in Williams v Ferrosan Ltd [2004] IRLR 607 . There, an issue arose as to how an award of compensation would be taxed. The Tribunal Chairman and both parties' representatives formed an erroneous view of the applicable taxation rules. The award of compensation was made on that erroneous basis. When this error was pointed out by the Inland Revenue, the Claimant applied for a review. The application was rejected on the basis that the compensation award was reached as a result of the error of both parties and the interests of justice ground for review did not cover the position. The EAT took a different view, allowing the appeal. It was held that the interests of justice required that the common error be put right at review. The Respondent was ordered to pay the correct sum in compensation, allowing for the incidence of taxation disposal.[13]I take a similar view in this case. It seems to me that the error in this case resulted from the Tribunal at the original hearing raising the spectre of Rule 25 and then overlooking a material part of its provisions applicable to the particular facts of this case. Whilst that was a matter which could properly form the basis for an appeal against the original judgment, I regard it as at least arguable, the test for the Chairman on the review application that the matter was capable of correction by way of review. Consequently, in my judgment, the Chairman was wrong to dismiss the review application under Rule 35(3). I shall therefore set aside the review judgment and having done so, shall exercise my powers under Section 35(1) of the Employment Tribunals Act 1996 and shall, myself, carry out the review, set aside the original judgment for the reasons given earlier and declare that the Claimant's claims against Mr Kuypers have not been withdrawn. Consequently, the case must now return to the Employment Tribunal for further case management directions.