SAFEWAY STORES LTD v MISS K Z ROYER [2005] UKEAT 0520_04_0303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0520_04_0303Case No Appeal No. UKEAT/0520/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SAFEWAY STORES LTDAPPELLANTMISS K Z ROYERRESPONDENT
Before
His Honour Judge McMullenDate 3 March 2005
[1]APPEARANCES For the Appellant NO APPEARANCE BY OR ON BEHALF OF EITHER PARTY. WRITTEN SUBMISSIONS BY BOTH For the Respondent SUMMARY Practice and Procedure Following an Ombudman's report, the Registrar accepted two administrative errors were made by the EAT. In the light of that, and on the Registrar's reference under Rule 20(2), it was ordered on Review that the Claimant was not debarred. On review, the substantive Order dismissing the Appeal was affirmed. HIS HONOUR JUDGE McMULLEN QC This case has an unusual history. The judgment which I gave on 25 August 2004 Appeal No. UKEAT/0520/04 sets out the facts and the material which are relevant to this decision. To that material, I would add only a passage from the Judgment of the Court of Appeal in Barber v Staffordshire County Council [1996] IRLR 209:
"30. In my judgment, however, Mummery J was correct when at 11B of the transcript of his judgment he said that there was nothing in the principles of cause of action of issue estoppel which stipulated that they could only apply in cases where a tribunal has given a reasoned decision on the issues of fact and law in the previous litigation. Section 140 of the 1978 Act contains provisions which render void any agreement to preclude a person from bringing proceedings before an industrial tribunal. A tribunal has therefore to be satisfied that a withdrawal is properly made. 31. I am satisfied that the order which was made by the industrial tribunal on 5 May 1993 was a judicial decision made by the industrial tribunal in the exercise of its powers under the 1978 act and the 1985 Regulations. It was not a mere administrative act."
[2]The circumstances which make this case unusual are that the Claimant contends that she should not have been debarred by the Order made by the Registrar shortly before my Hearing.[3]The Claimant made a complaint to the Ombudsman. The complaint was investigated. The Registrar accepted that the administration of the EAT had made two errors in dealing with the Claimant's representative, Ms Gayle, and difficulties which she faced in communicating with the EAT members of staff.[4]I knew nothing about this until the papers were put before me after my Judgment. It seemed to me that the correct approach would be to regard the two administrative errors as being capable of justifying a Review and I indicated to the parties that I was minded to review my Judgment.[5]I invited the parties' views on that and on my proposal that if there were a review it should take place on paper and if that were the case that representations should be made on the substantive merits.[6]The Respondent objected to the grant of a Review but has made representations lest I be against it. The Claimant accepted my three proposals.[7]Into the mix is the Registrar's Decision, which she made under Rule 20(2) to refer the matter to me. Broadly speaking, the Decision to debar the Claimant from the Hearing would fall within the definition of an Interlocutory Application and either she can deal with it or she can refer it to a Judge.[8]So it is that I am effectively looking at the Decision to debar and at my own Judgment on the substantive case. I have decided that it is correct to conduct a Review. Review is a power used sparingly in the EAT see Thompson v ASDA [2004] IRLR 598 . But it is given by Rule 33 (1) where an order has been wrongly made as a result of an error by the EAT or its staff or that the interests of justice require a Review. It seems to me therefore, that because of the administrative errors accepted by the Registrar to have occurred within the administration of the EAT this case falls within both of those two grounds for a Review. So I will effectively treat the Hearing of the Appeal as being bilateral in that the Claimant has not been debarred but takes a full part. She does so on paper as does the Respondent and with a copy of my original Judgment in front of her.[9]The written submissions which she has made deal with a number of medical conditions affecting her mother, Ms Gayle. The substantial material put in front of me relates to conditions affecting her in 2004. There is no relevant document relating to 2003 except for a Note from the Nurse Practitioner at Furzedown Primary Care Centre addressed to the Duty Social Worker at the Sensory and Physical Disability Team, I take it at Wandsworth NHS Trust, relating to Ms Gayle's condition on 3 July 2003. This undoubtedly reveals a sequence of disorders making it difficult for Ms Gayle to communicate effectively.[10]Now, the written submissions of Ms Gayle on behalf of the Claimant include the following:
"I am not looking for PITY, just understanding and consideration. If I have caused offence to anyone it was not done intentionally nor was I aware of myself being a problem, I was clearly discriminated against due to my disability when I was refused Reasonable Adjustments under the DISABILITY RIGHTS ACT 1999, and I did receive as stated Less Favourable treatment from staff, whether intentionally or unintentionally it happened, which did in fact aggravate my situation further. I am not a Solicitor, nor am I legally trained, however being disabled does not make me a lesser person, nor does it prevent me from understanding the procedures of 2002 concerning the Employment Appeals Tribunal, sent to myself by Mr Mead. Whilst reading the procedure it was clear the Appellant (Safeway) had not submitted a Valid notice of appeal to yourselves at the Employment Appeals Tribunal. Several attempts to point this out, having asked for Reasonable Adjustments, was not being noted, forcing me as stated to give it to my MP Tom Cox, who forwarded it to the Parliamentary Ombudsman to investigate. However since speaking to the chairman today at another case management concerning the case set for hearing on 21st September 2004, between Miss Keisha Zoe Royer (my daughter & Applicant) v Safeway and the respondent at the EAT concerning the same case to be heard, he stated I could do this on the day of the hearing, at the EAT. However due to my condition once again with severe PMS, I am fearful I will not be well enough, having already been unwell for 3 weeks with that and an injury to my left leg (sustained on 12 th July 2004). My daughter informed both Croydon Tribunal, and Bon Pearce I had not been well and unable to deal with mounting letters etc. I enclose a letter from Bond Pearce dated 2 nd August 2004 confirming they were aware I was unwell for 3 weeks, and not able to open or deal with correspondence in that time. This was sent to the Regional Secretary of the Tribunals, Croydon Employment Tribunal. When my daughter rang Bond Pearce, she hoped Bond Pearce would have informed yourselves, she felt she could not deal with yourselves having seen what happened to me in my attempts, also due to the fact she is my Carer and the nominee for both my father and uncle who are elderly and in care homes, with my uncle being admitted into Hospital on 13 th July 2004 with Heart Problems. I enclose a letter from my previous Social Worker Debroah Wood dated 23 rd June 2003, which confirms she is my carer and my Fathers Nominee. She does not mention my uncle however I enclose a copy of his pension book clarifying my daughters position as his nominee, which put her under an enormous strain throughout my mood swings, and her own PMS as well as dealing with the Hospital concerning my Uncle and my Father who is blind and has Dementia. I hope you will understand my daughter is under allot of pressure and having me upset and frustrated puts further pressure on her."
This involves a contention that the Notice of Appeal by Safeway was put in late. That is incorrect. A simple look at the calendar indicates that it was put in on the forty-second day. This ground is dismissed.[11]The other material relates to the condition of Ms Gayle in 2004 but for reasons which I will explain none of that is relevant. In my original Judgment, I concluded that the effective instrument of the Employment Tribunal was given on 9 May 2003: see paragraph 7. To this must be added the letter of 7 May 2003 cited in full at paragraph 6, which I held shed light upon the letter from the Tribunal. It was my view that although this was an Order it was in substance a Decision. However, none of that matters because in my view effective closure of this complaint was done by the combination of the letter from the solicitors and the letter from the Tribunal. And thus when the Chairman, Miss Taylor, descended upon this question at her Hearing in January 2004 all she added was by way of confirmation. It follows from the passage I have cited from Barber that an Order constitutes a judicial Decision in the exercise of its powers and is not a mere administrative act. Whatever the correct depiction of the 9 May 2003 letter, be it an Order or a Decision, it was a judicial act and at the time the Claimant was represented by solicitors.[12]Although I have paid careful attention to Ms Gayle's difficulties, none of that is relevant to deciding whether or not a withdrawal of the Claimant's case was properly made by her solicitors in May 2003. The whole point of having solicitors is that they spoke for the Claimant, relieving her mother of the difficulty which she obviously has in communicating herself and representing her daughter. Thus I come to the same conclusion as I did in August last year. There was an effective withdrawal made upon advice and the Claimant must be fixed with it.[13]The Respondent also contends that this case does not correspond to any of the reasoning set out in Sajid v Sussex Muslim Society ; sub nom Sajid v Chowdhury [2001] EWCA Civ 1684 ; [2002] IRLR 113 , for in that case there was a conscious decision to conduct proceedings in the High Court rather than in the Employment Tribunal. In this case a conscious decision was made by the Claimant, on advice from her solicitors, to abandon complaints about what happened to her in 2002 and instead to focus on later events by a separate Originating Application, which was duly presented.[14]In my judgment the correct approach to these three instruments remains as it was when I decided this matter in August 2004. Effective cessation of proceedings by judicial act was committed in May 2003. Whatever the position in 2004, whether it was a reiteration or a confirmation of that for the avoidance of doubt, does not really matter. Even if I were persuaded that difficulties effecting Ms Gayle were in place in January 2004 it does not detract from the fact that the Claimant on advice withdrew in 2003.[15]I confirm the view I took on the power of the Regional Chairman to intervene as he did and that remains as I put it in my earlier Judgment.[16]I would very much like to thank Ms Gayle for the conscientious way in which she has now put the Appeal and thank the Case Managers and Officers of the EAT for the help which they have given her in enabling the case to be put again before me, recognising as they did Ms Gayle's difficulty in communication and making adjustments, with her agreement, to avoid any disadvantage. By this combination of measures the Claimant's case has not been disadvantaged. The Registrar quite properly accepted that administrative errors have occurred involving the unjust debarment of the Claimant which, by both her decision and my decision now, we have been able to correct so that she has been treated as a full party to these proceedings.[17]The Application for Review is allowed the original Order is affirmed.

Cited in 1 later judgment