CALDWELL HARDWARE (UK) LTD v MR P HOOPER [2006] UKEAT 0151_06_1205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0151_06_1205Case No Appeal No. UKEAT/0151/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CALDWELL HARDWARE (UK) LTDAPPELLANTMR P HOOPERRESPONDENT
Before
His Honour Judge BirtlesDate 12 May 2006
[1]APPEARANCES For the Appellant Miss NADIA MOTRAGHI (of Counsel) Instructed by: Qdos Consulting Ltd Qdos Court Rossendale Road Earl Shilton Leicestershire LE9 7LY For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY Practice and Procedure: Withdrawal Employment Tribunal Chairman on a review revoked an order dismissing a claim on it being withdrawn and ordered the claim to be reinstated. Failure to consider Khan v Heywood and Middleton Primary Care Trust [2006] IRLR 345 which held that a withdrawal cannot be revoked. Appeal allowed. Claim dismissed. HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the judgment of an Employment Tribunal on a review hearing sitting in Birmingham on 22 December 2003. The review hearing was before a chairman sitting alone, Mr S Ahmed. The judgment was sent to the parties and entered in the Register on 24 January 2006. The Material Facts[2]The Respondent, Mr Hooper, was employed by the Appellant, Caldwell Hardware (UK) Ltd, from 11 June 2001 to 11 September 2004 when he resigned. He presented a claim to the Employment Tribunal in Birmingham for constructive unfair dismissal and breach of contract on 6 December 2004. The Respondent entered a Notice of Appearance and the case was listed for a two day hearing on 21 and 22 July 2005. On 4 July 2005, the Respondent was adjudicated bankrupt on his own petition to the county court: EAT bundle page 53.[3]On 12 July 2005 the Respondent stated that he had attended a meeting with his solicitor at his solicitor's offices. The same day the Respondent's solicitors sent a letter to the Appellant in these terms:
"We write to inform you that our client was adjudicated bankrupt on 4 th July 2005. We attach hereto a copy of the Bankruptcy Order. In these circumstances our client is not able to continue with his application to the Tribunal. We have notified the Tribunal Office."
EAT bundle page 52[4]The Tribunal received a letter from the Respondent's solicitors: EAT bundle page 51 and was advised that the claim had been withdrawn: EAT bundle page 50. The Tribunal sent a letter to the parties indicating that the Respondent had withdrawn his claim and that the file had been closed subject to any application under Rule 25, Schedule 1 of the 2004 Rules. The Appellant company sought an order for dismissal under Rule 25 (4). Such a Judgment was entered in the Tribunal register on 21 July 2005 in the following terms:
"The claimant having given notice of his intention not to proceed with his application and the respondent having applied to have the claim dismissed, pursuant to Rule 25(4) of the Employment Tribunals Rules of Procedure 2004, this claim is hereby dismissed."
EAT bundle page 49[5]Mr Hooper then began to represent himself. In a letter dated 12 August 2005, the Respondent wrote to the Employment Tribunal stating that as a result of advice given to his solicitors by the Employment Tribunal, or rather a member of the Employment Tribunal's staff, he was informed that he could not pursue his claim and he was "forced to withdraw.": EAT bundle page 45. A further letter dated 6 November 2005 says this:
"I would not have withdrawn my claim if I had not been given incorrect information from an employee at your department."
EAT bundle page 39 I emphasise that no evidence has been provided either by the Respondent himself or his previous solicitors that this was indeed the case.[6]The Employment Tribunal in Birmingham treated this letter as an application for a review under Rule 34 of the 2004 Rules. The Tribunal extended the time for such a review in the interests of justice and reviewed the decision of 21 July 2005, namely the dismissal of the claim which I have set out above.[7]The Tribunal made two findings. First, that the Judgment issued on 21 July 2005 under Rule 25 (4) of the 2004 Rules, having been properly issued, should be set aside in the interests of justice: Judgment paragraph 12 and second, that the Respondent be entitled to reinstate his claim: Judgment paragraph 2. From that decision, the Respondent below, the Appellant here, appeals.[8]Before turning to the grounds of appeal, I note that the Respondent, Mr Hooper, does not appear today. Attempts have been made to trace him. Letters written by Mr Hooper to the Tribunal in Birmingham have been written on writing paper which gives an address of 25 Haywood Road, Tile Cross, Birmingham, B33 0LJ. That was the address given to the Employment Appeal Tribunal. Letters and documents have been sent by the Employment Appeal Tribunal (EAT) to Mr Hooper at that address and papers have been returned to the EAT on the ground that access is not possible. No Notice of Appearance has been entered. There has been no correspondence from Mr Hooper to the EAT, and as I say, he does not appear today. In the circumstances, I think the interests of justice are best served if the appeal took place in his absence, no explanation for that having been given. Grounds of Appeal[9]The Notice of Appeal sets out two grounds. First, that the Tribunal erroneously held that the effect of evoking the Judgment under Rule 25 (4) of the 2004 Rules was also to revoke the withdrawal under Rule 25 (2) and reinstate the Respondent's claim, and second that in all the circumstances the Tribunal was in error in revoking the Judgment of 21 July 2005. The Law[10]The right to withdraw proceedings is set out in Rule 25 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Schedule 1. Rule 25 says this:
"Right to withdraw proceedings 25.1 – (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 the 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 of which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it, and where a 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 time or wasted costs. (4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent's application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed). (5) The time limit in paragraph (4) may be extended by a chairman if he considers it just and equitable to do so."
[11]Before me this morning the Appellant Company has been represented by Miss Nadia Motraghi. I am grateful to her for her skeleton argument and succinct submissions. As I have said, the Respondent was not represented and did not appear. Grounds of Appeal[12]I will take the grounds of appeal in turn. The Employment Tribunal Chairman erroneously held that the effect of revoking the Judgment of 21 July 2005 pursuant to Rule 25 (4) of the 2004 Rules was also to revoke the withdrawal of the claim under Rule 25 (2) and reinstate the Respondent's claim. There is a clear authority that once a claim has been withdrawn under Rule 25 (2) of the 2004 Rules, it cannot be reinstated because the Tribunal has no jurisdiction to set aside the notice of withdrawal. That is clear from the decision of Mr Justice Rimer (sitting alone) at this Tribunal on 9 December 2005 in the case of Khan v Heywood and Middleton Primary Care Trust [2006] IRLR 245. The issue of a withdrawal under Rule 25(1) and(2) was considered in great detail by Mr Justice Rimer and he held that once a claimant had withdrawn his claim, then the Employment Tribunal had no jurisdiction to alter that withdrawal in any way. One consequence of that would be that a claimant could, of course, bring a fresh claim, but it would be a claim which in many cases, if not most, would be out of time and issues of limitation would be relevant: see Khan at paragraph 24. It follows therefore, that the Chairman was in error in thinking that Mr Hooper could somehow reinstate his withdrawal. It follows also that the Chairman was in error in permitting Mr Hooper to have the dismissal of his withdrawn claim under Rule 25 (4) reinstated.[13]The Chairman was further in error in failing to have regard to Rule 36 (3) of the 2004 Rules. That deals with the review. Rule 36 (3) says this:
"A tribunal or chairman who reviews a decision… may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing, a new hearing must be held."
(emphasis added).[14]There is nothing in the judgment of the Chairman that indicates that having reviewed Mr Hooper's decision, and found that he could successfully have the dismissal of his claim reviewed that Mr Ahmed then took a separate decision on that matter. That constitutes a further error of law.[15]Finally, I turn to the review itself. Mr Hooper's contention, and it was his sole contention before the Chairman, was that he - or rather his solicitor, and therefore he – had been misled by an official of the Birmingham Employment Tribunals Service. The solicitor, it was said by Mr Hooper to the Chairman, had been misled because she, the solicitor, had been told that because Mr Hooper had been declared bankrupt on 4 July 2005, he could no longer pursue his claim in the Employment Tribunal and it was for that reason that his solicitor had written to the Tribunal withdrawing the claim. Despite, I think, three requests from the Employment Tribunals Service, the solicitors declined to produce any evidence to confirm that there had been such a conversation between Mr Hooper's then solicitor and an official of the Employment Tribunals Service. Mr Hooper himself had, of course, not been a party to any such conversation. At all times, it was suggested that the conversation was between the solicitor and an official of the Employment Tribunals Service.[16]When the matter came before the Chairman on 22 December 2005, he was faced with a bare assertion. There was simply no evidence before him, other than, I suppose, hearsay from Mr Hooper that such a conversation had taken place. All attempts to find a record of such conversation from the previous solicitor and indeed from within the Employment Tribunals Service itself had come to nothing. There was therefore no evidential basis upon which the Chairman could have possibly have granted a review, whether it be to revoke the dismissal of the claim on 21 July 2005 or the withdrawal of the claim on or about 12 July 2005. That also constitutes an error of law. Remedy[17]I turn then to remedy. For the reasons I have given, the appeal is allowed. As I have all the information in front of me that the Chairman had, I can exercise the jurisdiction of the Employment Tribunal Chairman sitting alone. On the material before me, I refuse the review of the dismissal of the claim of Mr Hooper which was made on 20 July 2005 and because of the authority of Khan , supra the withdrawal stands. It follows that the appeal is dismissed and the claim is dismissed.