1) BUTLINS SKYLINE LTD 2) MR M SMITH v MISS C A BEYNON [2006] UKEAT 0042

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0042-0045_06_2002Case No Appeal No. UKEAT/0042-0045/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
1) BUTLINS SKYLINE LTD 2) MR M SMITHAPPELLANTSMISS C A BEYNONRESPONDENT
Before
His Honour Judge J BurkeDate 20 February 2006
[1]APPEARANCES For the Appellant MR DAMIAN McCARTHY (Of counsel) Instructed by: Employment Law Consultants 2 Stewart Drive Clarkston Glasgow G76 7EZ For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Practice and Procedure – appearances/response; review The Tribunal rejected the employer's response under Rule 6(1) as not in the correct form; but it was in fact rejected because, and only because, the boxes had been filled-in in such a way that allegedly the response could not be scanned into the ETS computer – although I could see nothing wrong at all with the completion of the form. In absence of a response, Rule 9 applied; and the employers were barred from taking part in the proceedings. A Chairman refused a review on the basis that the application of Rule 9 involved no decision. Held after consideration of Rules 1 to 6, 8, 9 and 34: 1. ) the coming into effect of Rule 9 did not involve a decision; but 2. ) the rejection of the response was reviewable under Rule 34(1)(a) and was also appeallable; 3. ) the Chairman ought to have granted a review and to have allowed the response to stand; 4. ) the EAT should itself grant the review and, as the only possible just result of a review, allow the response to stand. 5. ) where a review and an appeal on a procedural matter are both available, the review option should be pursued. HIS HONOUR JUDGE J BURKE QC This is the full hearing of four appeals by Butlins Skyline Ltd (whom I shall call "Butlins") against four decisions, as it is claimed there were, of the Employment Tribunal at Exeter, in the course of proceedings brought in that Tribunal by Miss Beynon. By her claim form she claimed that she had been the victim of discrimination and harassment on the grounds of her sex and that she had been unfairly dismissed, her employment having come to an end on 1 July 2005. Her claim form was presented in time, as it seems to me, by one day, at least in terms of her unfair dismissal claim.[2]On 28 October 2005 Butlins submitted a response. The substantive parts of that response sets out an account of events which plainly put in issue all of Miss Beynon's claims. Discrimination and harassment are denied; as to dismissal, Butlins' case is that Miss Beynon was fairly dismissed for gross misconduct. Thus, the parties might have expected a contested hearing which would have resolved the factual issues and any legal issues which might have arisen between them.[3]However, that has not happened; and it is because that has not happened that these appeals are before the Employment Appeal Tribunal. Mr McCarthy, of Counsel, has appeared on behalf of Butlins and a Second Respondent, Mr Smith, who was an employee of Butlins and who, I will assume, is represented together with Butlins. Miss Beynon is not represented and is not present. She has as her solicitors Messrs Thompsons who, on 3 February 2006, sent a message to the Employment Appeal Tribunal by fax confirming that they were not resisting the appeal.[4]On the same day as that on which the response was presented, 28 October 2005, the Tribunal wrote to Butlins' then representatives that the Tribunal was unable to accept the response because it was not presented in the prescribed form, as required by rule 4(2) of Schedule 1 to the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 2004 .[5]Butlins' representatives had used the form available on the ETS website, which they had downloaded from that site. Due to some error on the part of ETS, if those who sought to download the ETS prescribed form from that website clicked on 'download', the form which was then downloaded was incorrect because boxes 1.5 to 1.8 were missing. I am told that, if instead 'publications' was clicked, that defect did not occur. Clicking on 'download' rather than 'publications' could hardly be said to have been anything other than a natural and reasonable course of action on the part of anybody who was seeking to download the form; but it is now known that, at least at the time, (and one hopes that it has since been rectified), the ETS website operated in such a way as to produce a form which was inconsistent with the prescribed form. Boxes 1.5 to 1.8, it should be said, seek information which for almost all, if not all cases, is of no interest as between the parties but may be of some statistical use to ETS.[6]Butlins' representatives then presented a second response, this time on the correct form. It contained all of the necessary information and was faxed to the Tribunal on 31 October 2005, that being the last day before the time for a response expired on 1 November. However, the Tribunal in a letter of 31 October, received by those representatives on 1 November, again rejected the response on the basis that it had not been presented on the prescribed form; and, on 4 November 2005, a letter was written to the parties by the Tribunal in these terms:
"No acceptable responses to the above claims have been received in this office. A Chairman of the Employment Tribunal, Mr J G Hollow, has decided that under Rule 9 of the Rules of Procedure, the Respondent can take no part in these proceedings."
Thus, in effect, Butlins and Mr Smith were denied the opportunity to put forward their defence to Miss Beynon's claim. (I do not propose to say "Butlins and Mr Smith" every time I refer hereafter to the Respondents. Reference to Butlins can be taken to include Mr Smith.)[7]Enquiries of the Tribunal as to the reason for the second rejection of the response produced the explanation that, according to the Tribunal, the manner in which information had been put onto the form by Butlins' representatives had caused the boxes on the form to be of the wrong size, with the effect that the Tribunal had been unable to scan the information into their computer system. I have to say that I cannot see how that arises on the form itself. All the boxes appear to have been filled in or had entries placed into them without any extension to the size of the box and without any writing overlapping the size of the box; but that at least was the explanation given by the Tribunal.[8]In these circumstances, on 7 November 2005, Butlins' representatives sought a review of the Tribunal's decision to reject the responses. They did so saying that they made the request in terms of rule 30(4) of schedule 1 to the 2004 Regulations and set out their reasons namely that the second response which they had submitted contained all relevant information and satisfied the requirements of rule 4. On 8 November, Mr Hollow rejected the application for a review. The letter of that date says this:
"The Chairman directs me to inform you that he refuses the request for review. Despite the wording of a letter of 4 November 2005, which is unfortunate, there was no decision that the respondent could take no further part in the proceedings. Rule 9 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 makes this clear. If a response is not presented the respondent cannot take part. The Rule does not call for any decision on the part of a Chairman. It flows automatically from the rejection of the response. That is an entirely administrative decision and not one which is able to be reviewed under our Rules."
[9]On 11 November, Butlins' representatives replied, saying that their application for review was not made under rule 9 but under rule 30(4), and renewing their review application. On 15 November the Tribunal rejected the second request for a review on the basis that there had been no decision which could be the subject of a review.[10]Butlins now appeal against the following four decisions or what they contend were decisions of the Tribunal, namely: 1) the second rejection of their Response; 2) a decision made by the Tribunal Chairman that Butlins could take no further part in the proceedings; 3) the Chairman's first rejection of their review application; 4) the Chairman's second rejection of their review application[11]Mr McCarthy agrees that there is in substance no difference between the first and the second review application and that, if the appeal in relation to the first review application is successful, it is not necessary for him to pursue the second and, vice versa. The Regulations[12]It is, I regret, necessary to set out the Rules in a little detail. First of all, Rules 4(1) and 4(2) provide as follows:
"4. Responding to the claim (1) If the respondent wishes to respond to the claim made against him he must present his response to the Employment Tribunal Office within 28 days of the date on which he was sent a copy of the claim. The response must include all the relevant required information. The time limit for the respondent to present his response may be extended in accordance with paragraph (4). (2) Unless it is a response in proceedings described in regulation 14(3), any response presented on or after 6 April 2005 must be on a response form prescribed by the Secretary of State pursuant to regulation 14."
It is not necessary to set out the details of rule 4(3) in which the required information in relation to the Response is specified. Rule 4(4) deals with an application for extension of time for presentation of a Response, which must be made within the 28 day period in which the Response itself is due. Rule 5 provides as follows:
"5. What the tribunal does after receiving the response (1) On receiving the response the Secretary shall consider whether the response should be accepted in accordance with rule 6. If the response is not accepted it shall be returned to the respondent and (subject to paragraphs (5) and (6) of rule 6) the claim shall be dealt with as if no response to the claim had been presented. (2) If the Secretary accepts the response he shall send a copy of it to all other parties and record in writing the date on which he does so."
Rule 6 provides as follows:
"When the response will not be accepted by the Secretary 6. - (1) Where a response is required to be presented using a prescribed form by rule 4(2), but the prescribed form has not been used, the Secretary shall not accept the response and shall return it to the respondent with an explanation of why the response has been rejected and provide a prescribed response form. (2) The Secretary shall not accept the response if it is clear to him that any of the following circumstances apply - (a) the response does not include all the required information (defined in rule 4(3)); (b) the response has not been presented within the relevant time limit. (3) If the Secretary decides not to accept a response for either of the reasons in paragraph (2), he shall refer the response together with a statement of his reasons for not accepting the response to a chairman. The chairman shall decide in accordance with the criteria in paragraph (2) whether the response should be accepted. (4) If the chairman decides that the response should be accepted he shall inform the Secretary in writing and the Secretary shall accept the response and then deal with it in accordance with rule 5(2). (5) If the chairman decides that the response should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall inform both the claimant and the respondent of that decision and the reasons for it. The Secretary shall also inform the respondent of the consequences for the respondent of that decision and how it may be reviewed or appealed. (6) Any decision by a chairman not to accept a response may be reviewed in accordance with rules 34 to 36. If the result of such a review is that the response should have been accepted, then the Secretary shall accept the response and proceed to deal with the response as described in rule 5(2)."
[13]It is next necessary to turn to the rules which apply to starting a claim, Rules 1 to 3, which so far as relevant are in this form:-. "1 Starting a claim… (3) Unless it is a claim in proceedings described in regulation 14(3), a claim which is presented on or after 6 April 2005 must be presented on a claim form which has been prescribed by the Secretary of State in accordance with regulation 14... 2 What the tribunal does after receiving the claim(1) On receiving the claim the Secretary shall consider whether the claim or part of it should be accepted in accordance with rule 3. If a claim or part of one is not accepted the tribunal shall not proceed to deal with any part which has not been accepted (unless it is accepted at a later date). If no part of a claim is accepted the claim shall not be copied to the respondent. 3 When the claim will not be accepted by the Secretary (1) When a claim is required by rule 1(3) to be presented using a prescribed form, but the prescribed form has not been used, the Secretary shall not accept the claim and shall return it to the claimant with an explanation of why the claim has been rejected and provide a prescribed claim form.(2) The Secretary shall not accept the claim (or a relevant part of one) if it is clear to him that one or more of the following circumstances applies - (a) the claim does not include all the relevant required information; (b) the tribunal does not have power to consider the claim (or that relevant part of it); or (c) section 32 of the Employment Act (complaints about grievances) applies to the claim or part of it and the claim has been presented to the tribunal in breach of subsections (2) to (4) of section 32.(3) If the Secretary decides not to accept a claim or part of one for any of the reasons in paragraph (2), he shall refer the claim together with a statement of his reasons for not accepting it to a chairman. The chairman shall decide in accordance with the criteria in paragraph (2) whether the claim or part of it should be accepted and allowed to proceed. (5) If the chairman decides that the claim or part of it should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall as soon as is reasonably practicable inform the claimant of that decision and the reasons for it in writing together with information on how that decision may be reviewed or appealed. (8) Any decision by a chairman not to accept a claim or part of one may be reviewed in accordance with rules 34 to 36. If the result of such review is that any parts of the claim should have been accepted, then paragraph (7) shall not apply to the relevant parts of that claim and the Secretary shall then accept such parts and proceed to deal with it as described in rule 2(2)."[14]In both sets of rules, rules 1 to 3 which relate to a claim, and rules 4 to 6 which relate to a response, where either document is rejected on any basis other than that it was not in the prescribed form, pursuant to rule 3(2) or 6(2) the Tribunal staff must refer the matter to a Chairman who then has to decide under rule 3(5) or rule 6(5) whether the claim or response is to be accepted and must notify the relevant party of his decision with reasons for it in writing if the claim or response is not to be accepted. That decision is a judicial decision which is both appealable, as I see it, and expressly made reviewable by, in the case of a claim, rule 3(8), and in the case of a response, rule 6(6). Indeed, it seems to me that the rejection process where the rejection is, in the case of a claim, on the grounds set out in rule 3(2) or, in the case of a response, on the grounds set out in rule 6(2) is not complete until the question of rejection has been considered and decided by a Chairman.[15]However, the procedure for reference to a Chairman and decision by a Chairman does not appear under the Rules to apply in a case where the rejection of a claim is made pursuant to rule 3(1), on the ground that the prescribed form has not been used and the rejection of a response is made on the ground that the prescribed form has not been used, pursuant to rule 6(1). These two sets of rules appear to mirror one another. In this case, because the rejection was a rejection under rule 6(1) on the ground that the response was not in the prescribed form, the rejection of the response would not have had to go to a Chairman pursuant to rule 6(3) and would not have been expressly reviewable pursuant to rule 6(6).[16]Rule 8(1) provides that a Chairman may, in the circumstances listed in rule 8(2), which include a case in which no response has been presented within the relevant time limit, issue a default judgment, if he considers it appropriate to do so; but whether a Chairman does so or not, rule 9 provides as follows:
"Taking no further part in the proceedings 9. A respondent who has not presented a response to a claim or whose response has not been accepted shall not be entitled to take any part in the proceedings except to - (a) make an application under rule 33 (review of default judgments); (b) make an application under rule 35 (preliminary consideration of application for review) in respect of rule 34(3)(a) and (b); (c) be called as a witness by another person; or (d) be sent a copy of a document or corrected entry in accordance with rule 8(4), 29(2) or 37; and in these rules the word "party" or "respondent" includes a respondent only in relation to his entitlement to take such a part in the proceedings, and in relation to any such part which he takes."
[17]Rule 10 contains what are by now familiar case management powers; it provides, by rule 10(2)(n), that a case management order may be varied or revoked.[18]Rule 28(1) provides as follows:
"Orders and judgments 28. - (1) Chairmen or tribunals may issue the following - (a) a "judgment", which is a final determination of the proceedings or of a particular issue in those proceedings; it may include an award of compensation, a declaration or recommendation and it may also include orders for costs, preparation time or wasted costs; (b) an "order", which may be issued in relation to interim matters and it will require a person to do or not to do something."
[19]Rule 33(1) provides as follows:
"Review of default judgments 33. - (1) A party may apply to have a default judgment against or in favour of him reviewed. An application must be made in writing and presented to the Employment Tribunal Office within 14 days of the date on which the default judgment was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so."
[20]Finally, in this prolonged reference to the Rules, Rule 34 provides as follows:
"Review of other judgments and decisions 34. - (1) Parties may apply to have certain judgments and decisions made by a tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are - (a) a decision not to accept a claim, response or counterclaim; (b) a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and (c) a decision made under rule 6(3) of Schedule 4; and references to "decision" in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules. (2) In relation to a decision not to accept a claim or response, only the party against whom the decision is made may apply to have the decision reviewed. (3) Subject to paragraph (4), decisions may be reviewed on the following grounds only - (a) the decision was wrongly made as a result of an administrative error; (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; (d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or (e) the interests of justice require such a review. (4) A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraphs (3)(a) and (e). (5) A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraphs (3) or (4)."
Employment Appeal Tribunal Decisions[21]It is well known that certain aspects of the 2004 Rules have created considerable difficulties for Tribunals and for parties to Tribunal proceedings. Chairmen have been confronted by a number of situations in which one party or the other appears, pursuant to the Rules, because of some failure, or supposed failure, to comply strictly with the requirement of the Rules to be in a position in which he or she is unable to pursue a claim or to defend a claim on the merits. As a result, a number of decisions has been made by the Employment Appeal Tribunal which throw light on the manner in which some, at least, of the difficulties which have arisen can and should be resolved.[22]The present case gives rise to a new problem; but the guidance of the earlier cases is valuable in terms of considering what is the proper resolution of the difficulties which arise in the present case.[23]In Onwuka v Spherion Technology UK Ltd [2005] ICR 567 the Tribunal refused applications by the claimant to amend his originating application so as to add a complaint of detriment for making public interest disclosure and to join a new party as respondent. They also rejected his application to review these decisions on the basis that they were case management decisions and were not judgments or orders which could be reviewed under rule 34. Rimer J, sitting alone in the Employment Appeal Tribunal, held that the Chairman had erred in law in rejecting the application to join a new respondent and remitted that application to be re-heard by the Tribunal. He further held that rule 34 did not contain the sole power to review and that rule 10 itself, by rule 10(2)(a), gave the Tribunal jurisdiction to review a decision made under rule 10. That decision is not of direct importance in this case unless any of the decisions in this case could be said to have been made under rule 10. If, however, any of the decisions in this case were made under Rule 10 then, on the basis of the decision in Onwuka , with which I respectfully agree, such decision would be reviewable on the grounds there set out.[24]In Grimmer v KLM City Hopper UK [2005] IRLR 596 – and I should interpose that I am going through these authorities in the order in which they were decided in the Employment Appeal Tribunal – the Tribunal rejected the claimant's originating application under the new flexible working provisions inserted into the Employment Rights Act 1996 because she had not, it was said, provided sufficient details of her claim. That rejection must have been made under rule 3(2). The Employment Appeal Tribunal, HHJ Prophet sitting alone, allowed her appeal on the basis that her originating application did give sufficient detail for it to be discerned that she was putting forward a complaint which fell within the jurisdiction of the Tribunal and that that was sufficient. At paragraph 7 of his judgment, HHJ Prophet said this:
"7 Thus the Rules provide that the chairman, in effect, makes the decision as to whether the claim can be accepted. I have not seen, nor has Mr McCarthy, the written reasons from the chairman in the documents signed by him, and Mr McCarthy suggests that the document ought to be sent to the parties. I will assume, however, that for the purposes of this case that the reasons read 'not providing details of the claim…' 8 When one moves on from the mechanics of rules 1-3 some matters of fundamental importance to the interest of justice arise. The Rules cannot be seen in isolation. The chairman, unlike the secretary whose functions are administrative, has as an independent judicial person, to do more than merely run down a checklist. He or she must have in mind the overall interest of justice. It is a very serious step to deny a claimant or for that matter a respondent the opportunity of having an employment rights issue resolved by an independent judicial body i.e an employment tribunal. Most chairmen would not wish to feel forced to do so without their being a very good reason. 10 What is the purpose of insisting through Rules that a failure to provide all the 'required information' can lead to a claim not being accepted as a valid claim? If the primary responsibility for making judicial rules rests, not with the judicial body but with the executive, there is a danger that executive objectives may gain precedence over the interests of justice. One can see that providing such information is desirable both to smooth the passage of the complaint through administrative and judicial processes and also for the benefit of the respondent should the claim reach the respondent. But can it be essential to the point that the judicial body itself is compelled to take the draconian step of refusing to accept the claim at all when, as Mr McCarthy says, there is no compelling reason why the merits of the complaint cannot be examined? 11 Furthermore, how does such a policy meet the overriding objective in reg. 3 of dealing with a case justly and ensuring that the parties are on an equal footing? How does it have proper regard to the fact that employment tribunals are frequently approached by claimants who are not legally represented? How does refusing to accept a claim on the basis of not providing 'required information' affect a claimant in respect of the running out of time limits for bringing claims? How can principles of considering prejudice to the claimant and the respondent be taken properly into account? Could it be that a rigid application of these rules might result in a breach of the safeguards enshrined in Article 6 of the European Convention on Human Rights? Those questions and others arising from the operation of rules 1-3 and the various items under the heading 'required information' may well arise for further consideration in the future. 13 A vital principle which emerges from a full reading of Mr Justice Neill's judgment in Burns is that the Employment Appeal Tribunal appears to have accepted the submission of Mr Goudie of counsel on behalf of Mr Butt that the Rules of Procedure cannot cut down on an employment tribunal's jurisdiction to entertain a complaint which the primary legislation providing an employment right empowers it to determine. If there is a conflict, the Rules must give way. I can see no reason why that principle, which accords with the interests of justice, cannot be applied generally to rules 1-3 of the 2004 Regulations. Those responsible for introducing these Rules do not appear to have had proper regard to the background indicated in the above cases. 15 The test for 'details of the claim' emerges as being whether it can be discerned from the claim as presented that the claimant is complaining of an alleged breach of an employment right which falls within' the jurisdiction of the employment tribunal. It follows that if that test is met there is no scope for either the Secretary or a chairman interpreting 'details of the claim' as being 'sufficient particulars of the claim'. If it becomes necessary, as a case proceeds through the system, for further information or further particulars to be obtained eg to clarify the issues, that can be done, either on the application of a party or by a chairman on his or her own initiative, under rule 10 (case management). 16 Neither the secretary nor the chairman was therefore entitled to determine that it was appropriate to deny Mrs Grimmer access to the employment tribunal by refusing to accept her claim on the basis that she had not provided 'required information' in the form of 'details of the claim'. That was an error of law. The appeal is allowed, and I substitute a decision that Mrs Grimmer's claim was validly lodged and should now be processed through the employment tribunal in the usual way."
[25]I agree with these observations of the Employment Appeal Tribunal. Although there HHJ Prophet was dealing with a supposed shortcoming in an originating application rather than in a response, as in the present case, the general thrust of those observations is wholly applicable to the present case and the relevant provisions, as I have already said, mirror those which apply to a response. If a Chairman's decision under rules 3(3) to (5) in respect of a claim is not an administrative but a judicial decision, the same must apply in the case of a decision under rule 6(3) to (5) in respect of a response.[26]Whatever the Rules provide, it is a serious step to deny a party justice. I agree with Mr McCarthy's submission that in the interests of justice, the threshold for access, and that applies as much to respondents as it does to claimants, should be kept low as, in the context of the Employment Act 2002 and regulations made there under, The Employment Appeal Tribunal has held in the case of Shergold v Fieldway Medical Centre [2006] I ALR 76. However, it must be remembered that the actual decision in Grimmer does not bear directly on this case because the refusal to accept the response in this case was not on the basis of rule 6(2) which, as I have said, is the mirror of rule 3(2) but on the basis of rule 6(1) which is the mirror of rule 3(1) and which does not trigger a compulsory reference to a Chairman and does not trigger the right to a review which is expressly provided in respect of such a Chairman's decision.[27]In Moroak v Cromie [2005] IRLR 535 the respondent's representatives faxed their client's response to the Employment Tribunal 44 minutes after midnight on the last day for the response. The delay arose from a computer breakdown at their office. The Tribunal informed the respondents that their response could not be accepted because it was too late i.e. under rule 6(2). The respondents applied for an extension of time and for a review. The Tribunal said it had no power to extend the time once the time for a response had itself expired (see Rule 4(4)) and rejected the application for a review on the basis that it had no jurisdiction to grant it. The respondent appealed; and Burton P allowed the appeal. At paragraph 11 of his judgment he asked this question:
"11 What is the position, then, of a party who has not lodged the response in time, and not made an application for an extension prior to the expiry of the period? Is that party left, as the tribunal concluded here, without any device, and unable to take any part in proceedings?"
[28]At paragraph 12 he referred to the sanction of a default judgment and to rule 8(5) which gives a right to either party to have a default judgment reviewed. At paragraphs 16 and 17 he said this:
"16 That is, of course, all well and good where, upon a respondent failing to comply with the time limit under rule 4(4), a judgment in default is issued. It is apparent, however, that this new animal, the default judgment, will not necessarily be issued in every case; it would appear to be an entirely discretionary matter on the part of the tribunal as to whether, in a particular case, it does or does not issue a default judgment It is plain, of course, that the issuing of a default judgment is more drastic than the order that was made here (which simply prevents the respondent from taking any continuing part in the proceedings) because a judgment is then entered without a hearing, whereas in a case where an order is made such as was made in this case, all that occurs is that the hearing proceeds, but with no contribution from the respondent Nevertheless, particularly in a case such as this, where it would appear that the whole case will depend upon oral evidence, if the only oral evidence that will be adducible at the hearing is that of the claimant, the order made debarring a respondent from taking further action is as good as a default judgment in everything except formalities. 17 In a case, then, such as this, where judgment in default is not entered, is the respondent left in limbo? That is, that whereas such respondent could make an application if the time limit has not expired, or if it has expired but a judgment in default has been entered, he or she could not do so where no judgment in default has been entered. That is plainly a lacuna which cannot be intended by these rules, if it be a lacuna."
[29]He proceeded to hold that, when the Chairman wrote to the respondent's representatives to the effect that the response could not be accepted and they could take no part in the proceedings, the Chairman was making a decision under rule 6(3) to (5) which could be reviewed under rule 6(6). Burton P then held to hold that the Tribunal were, for those reasons in error in not permitting a review under rule 6(8), that the discretion upon such a review could only be exercised in one way, namely by doing that which was just and equitable. On the facts that meant that the slightly belated response should be accepted. Thus, he allowed the appeal and himself ordered that the response be accepted.[30]I respectfully agree with the observations of Burton (P) in Moroak . But, again the route to review in that case, arose by virtue of the fact that the rejection took place pursuant to rule 6(2) and not rule 6(1).[31]In Richardson v U Mole Ltd [2005] IRLR 668, Burton P, allowed the claimant's appeal against the Tribunal's refusal to accept his claim alleging unfair dismissal on the basis that he had not expressly stated in his claim form that he had been an employee of the respondent. This was a rejection under rule 3(2) and not under rule 3(1). It was held that the claim form had sufficient information but, if not, the error was trivial and the Tribunal Chairman should have rectified the problem by a review. At paragraphs 17 to 19 Burton P said this:
"17 That power to review a decision is mirrored in the power given in relation to rejections of responses. I do not propose to read the whole of that part of the Rules which relates to the similar gateway with regard to responses set out in 4, but that procedure, which is effectively a mirror image of the claim form procedure, concludes with rule 6(6): 'Any decision by a chairman not to accept a response may be reviewed in accordance with rules 34 to 36. If the result of such a review is that the response should have been accepted then the Secretary shall accept the response and proceed to deal with the response as described in rule 5(2). ' 18 I dealt with the existence of that power to review in Moroak, and it was entirely clear to me that the power to review on the grounds of the interests of justice applied to a response which had been rejected as out of time and in respect of which there had not been an application for an extension prior to the expiry of the relevant period for some reason that a tribunal found acceptable, applying the principles of justice and equity. So too in this case. This is rather similar to the case of the respondent leaving out its address in error, and to the case of the applicant leaving out in error the fact that, in fact, he had complied with rule 1(4)(h), to which I referred earlier. In this case too, there is what is clear to be a wholly immaterial error. 19 Of course, it might be that, in some cases, whether or not a claimant is an employee is a material matter going to the foundation of the jurisdiction, and that would be a matter to consider on a review, namely as to whether it would be just and equitable to allow a correction of an earlier error or omission where it might found a claim based on employment which had not been previously asserted, at any rate expressly. Similarly, no doubt applying principles analogous to those in Selkent Bus Co v Moore [1996] IRLR 661 , it might well be a matter of considerable contention to allow, on a review, correction of an error with regard to failure to give required information under rule 1 (4)( e). But, in a case such as this, where it would be asserted and accepted by the respondent if asked by the chairman, that the error was an immaterial one, it is quite plain that on a review this claim would and should have been allowed to go forward and there would thus be a conclusion within rule 3(8) on a review that the claim should have been accepted, because on the information before the chairman on a review the error was explicable and/or immaterial. Much as I sympathise with those tribunals who are concerned about the Rules as they presently stand, an would prefer them to be amended so as to make the position clear in my judgment, there is a power to review by reference to rules 3(8) and 6(6) which enables a tribunal to do just that justice which tribunals are keen and conscientious, and always have been keen and conscientious, to do, notwithstanding the change of Rules. What should be, and will be, beneficial, namely the introduction of these gateways, must not be allowed to degenerate into injustice, and in this case the claim should have been allowed through at first instance. In other cases, even if not allowed through at first instance, in an appropriate case, and after consideration of the ordinary principles under rule 34(3)( e) of the interests of justice, it will or may be appropriate to allow a claim form , or response, which did not initially comply with the requirements through on a review."
[32]Finally, in Sodexho v Gibbons [2005] IRLR 836 the claimant was ordered by the Tribunal to pay a deposit within 21 days. No deposit was paid and the claim was struck out. The deposit was not paid because the claimant's solicitors had given with their address, or the address to whom the Tribunal should send documents, the wrong postcode. The Tribunal's letter containing the order requiring the deposit was therefore wrongly addressed and never received by the claimant's solicitors. On receipt of the strike-out order, the solicitors applied for a review on the grounds set out in rule 34(3)(a) and (e) that there had been an administrative error and that the interests of justice required a review. The employers appealed against the Tribunal's decision to review and to set aside the strike-out order. HHJ Clark dismissed the appeal. He held: 1) that a strike-out order is a reviewable order; 2) that an application for review is sufficiently made if the grounds falling within rule 34(3) can be discerned from the document containing the application; it is not necessary to specify the grounds of rule 34(3) relied on individually within that document; 3) at paragraphs 34 to 40, of his judgment he considered what, under the 2004 Rules, is an "administrative error". He held at paragraph 40 that the words "administrative error" which appear for the first time in the 2004 Rules were not limited to errors on the part of the Employment Tribunal staff but covered any administrative error; "administrative" meaning "to do with the management of affairs"; 4) he held that the interests of justice ground in rule 34 should no longer be construed as restrictively as before the introduction of the new Rules in the light of the overriding objective of dealing with cases justly and even-handedly. See paragraph 52. My conclusions[33]However regrettable it is that the problem in this case originated from a fault on the ETS website, the Tribunal's administrative staff were not permitted to depart from the Rules for that reason. Whether an administrative error was made or not in the case of the rejection of the first response does not arise in any event because there is no appeal against the rejection of the first response; and I need say no more about it.[34]The second response was, however, submitted to the Tribunal in the prescribed form; and it is not suggested that it did not contain any of the information which the Rules required. The fact that the text inserted into the response was, as it has said to have been, such as to cause one or more of the boxes to be in a form which could not be scanned into the Tribunal's computer system was not, in my judgment, a valid reason for the rejection of that response. There is no requirement in the Rules as to the size or nature of the text which is inserted onto the response form by or on behalf of the Respondent or as to the ability of the Tribunal staff to scan the completed response into their computer system. The member of staff who rejected the second response had no good or valid reason in law for doing so and ought in law to have accepted it.[35]Had the rejection been on the grounds set out in rule 6(2) or either of those grounds, there would, in the light of the authorities which I have canvassed during the course of this judgment, now be no difficulty. In line with those decisions, I would have held that the rejection process was not complete until the Chairman had decided under rule 6(6) that the response should be rejected. I would have held that the letter of 4 November demonstrated that the Chairman had made such a decision, not a decision that rule 9 would apply for no such decision is needed, but a decision that the response was rejected with the effect that rule 9 came into operation. Such a decision on the part of the Chairman would have been reviewable under rule 6(6); it would also have been in error of law and appealable for the reasons I have already set out.[36]However, as I have said more than once, this is not a case of a rule 6(2) rejection but of a rule 6(1) rejection which does not involve any decision by a Chairman or any compulsory reference to a Chairman. Thus, rule 6(6) is not relevant to this case; yet the rejection of the response had the effect that, pursuant to rule 9, Butlins were not entitled to take any part in the proceedings except for the very limited purposes set out in rule 9; and it was open to a Chairman, if he considered it appropriate to do so, to enter a default judgment under rule 8. Strangely, if he had taken the step of entering a default judgment under rule 8, that judgment would have been reviewable; and one is entitled perhaps to hope that, had that happened, a review would have been held and the sequence of events which I have described would have been unravelled and corrected. But there has been no default judgment; and there is no requirement there should be a default judgment; yet pursuant to rule 9 the Respondents were barred from taking any further part in the proceedings, even though there had been no default judgment.[37]In these circumstances I ask myself the question, is the error of law plainly made, in my judgment, by the member of staff who rejected the second response capable of being corrected in some way other than through a review under rule 6(6) or a review under rule 8(5), neither of which is available?[38]Mr McCarthy submits that the error can be corrected both by review and by appeal. Let me take review first. Mr McCarthy submits that the decision in Sodexho supports the view that the error made by the member of staff who rejected the second response was an administrative error. I agree, although perhaps it was not necessary for the enlarged definition of "administrative error" which attracted HHJ Clark in that case to be deployed to reach that result in the present case. He then submits that the decision made by that member of staff by way of administrative error was a decision not to accept a response falling within rule 34(1)(a) and, therefore, was reviewable pursuant to rule 34(1). The grounds for such a review would be those appearing in rule 34(3)(a) and 34(3)(e), namely that the decision was wrongly made as a result of an administrative error and that the interests of justice require such a review.[39]He also submitted that, if necessary, the decision of the member of staff could be regarded as a judgment issued by a Tribunal but not by a Chairman falling within rule 28(1) because it was in effect a final determination of a particular issue in the proceedings which Miss Beynon had brought, namely whether the response should be accepted. Alternatively, he submitted that the decision was a case management decision falling within rule 10 and reviewable on the basis set out in the decision in Onwuka .[40]I reject the argument that that decision was a case management decision made under rule 10. The power to make case management decisions under rule 10 is given to a Chairman. The member of staff who rejected the response was not a Chairman and in any event the decision was not a case management decision falling within rule 10.[41]It is in my judgment not necessary for Mr McCarthy to succeed in his attempt to persuade me that the member of staff's decision was a judgment falling within rule 28. I am satisfied that that decision was a decision which falls within rule 34(1)(a).[42]I am so satisfied for these reasons. Although the decision was not one reached by a Chairman, it was a decision which had the effect of bringing the part which could be played by the Respondents in the proceedings to an end, other than for the limited purposes set out in rule 8. Although it might be argued that the word "decision" in rule 34 means a judicial decision, the Rules, for the reasons that I have sought to explain, provide that while a rejection under rule 6(2) of a response must go through a Chairman, a rejection under rule 6(1) does not have to go through a Chairman; yet a rejection under rule 6(2) which must go through a Chairman is expressly reviewable by the provisions of rule 6(6). Rule 34(1)(a) would appear to be unnecessary for the purpose of providing a jurisdiction to entertain such a review. Rule 34(1)(a) must have contemplated some other situation in which a review of a decision not to accept a response would arise; and I can see no other situation at the moment and no other has been suggested than that which exists in this case, namely a rejection under Rule 6(1), which did not involve a Chairman's decision.[43]Even if the situation which prevails in this case is not the only situation on which rule 34(1)(a) could bite, I am satisfied, on a sensible and just interpretation of these Rules and having regard to the overriding objective of dealing with cases justly and even-handedly, that it is right to construe regulation 34(1)(a) as giving a right to review in the situation in this case, namely where there has been an erroneous or allegedly erroneous rejection under rule 6(1) of a response; the same will apply by a parity of reasoning in the case of a claim.[44]For these reasons I conclude that the decision to reject the second response was reviewable. Was it, and is it appealable? That is a more difficult question, as I see it. Although, rule 6(1) does not use the word "decide" or "decision", in contrast to rules 6(3), 6(4), 6(5) and 6(6), the mechanism is surely the same. What is being reached pursuant to 6(1) by the secretary i.e. a member of the Tribunal staff is a decision not to accept the response. Is that decision appealable? There is learning on whether a decision is appealable if it is only an administrative decision to which, I have to say, I have not been taken in the course of this appeal; but it appears to me, if one looks at section 21 of the Employment Tribunals Act 1996 where the jurisdiction of the Appeal Tribunal is defined, that such a decision, if made in error of law, is one which is capable of being considered on appeal by the Employment Appeal Tribunal. Section 2(1) of the 1996 provides 1(1):
"21. - (1) An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under or by virtue of-" and then it sets out all the various statutes which give jurisdiction for the Employment Tribunal including the jurisdiction in respect of all the claims made by Miss Beynon, including: "(a) the Equal Pay Act 1970, (b) the Sex Discrimination Act 1975, (c) the Race Relations Act 1976, (d) the Trade Union and Labour Relations (Consolidation) Act 1992, (e) the Disability Discrimination Act 1995, or (f) the Employment Rights Act 1996."
[45]In my judgment even if there was no decision made here under rule 6(1), a question of law arises in proceedings before an Employment Tribunal; namely, whether or not the rejection of the second response was, or was not, in accordance with the requirements of the law. For these reasons, although I say this with less confidence then the views I have expressed about review, it appears to me that the decision under rule 6(1) is appealable.[46]Thus, the first appeal, against the decision under rule 6(1), is allowed. It is allowed because I can see no warrant in law for the rejection of the response on the sole grounds which were put forward. That response ought to have been accepted.[47]I turn, then, to the second appeal against what is said to have been a decision of the Chairman which led to, or which is a decision in terms of rule 9. I dismiss that appeal. In my judgment, there was no decision of any Chairman in this case under rule 6 because none was called for and none was made; and rule 9 describes an effect of the rejection of the response and involves no judicial decision before it comes into operation.[48]I therefore turn to the appeals against the rejection of the application for a review. I am going to deal with them as one because they are, in effect, one. I have already expressed the reasons for my conclusion that the decision under rule 6(1) was reviewable. In my judgment, although the Chairman was wholly entitled to say and was correct to say that no decision had been made by a Chairman either under rule 6, or under rule 9, nonetheless the decision made by the member of staff to reject the second response was reviewable and ought to have been the subject of a review.[49]The Employment Appeal Tribunal in Moroak made it clear that, once the position has been reached which I have now reached in this judgment, it is open to the Employment Appeal Tribunal, rather than remitting the review issue to the Tribunal to determine the review which ought to have been granted but was not granted in error of law, if it is clear that the discretion arising upon the review could only have been exercised in one way.[50]This is just such a case. It is in my judgment as plain as plain could be, that, on the basis that the review jurisdiction requires the Tribunal to consider what is just and equitable and to consider determining matters justly, even-handedly and in accordance with the overriding objective, a review would inevitably be granted and be successful, if heard by the Tribunal; and I should reach the same result. This is a case in which the original member of staff made an administrative error; it is a case in which the interests of justice require that the refusal to accept the response be set aside and that the response be accepted. The response itself was not out of time. No application to extend time needs to be made. It was, just, in time and ought to have been accepted as presented.[51]Accordingly, I allow the appeals against the refusal of the Tribunal to grant a review, and I, myself, decide the outcome of such review which is that the second response should stand as the Respondent's response in these proceedings which should now be dealt with on the merits in the usual way.[52]The situation which arises in this case, in which it is open to an aggrieved party to seek a review but may also be open to that party to appeal is not unique. Where, on a procedural issue, each of these options is available, it is highly desirable that the aggrieved party should choose the option of review. A review is, for obvious reasons, speedier, less cumbersome and in all probability less expensive than an appeal. Parties should be discouraged from appealing against what they see as a procedural error when that error can be corrected by a review.