MR K WAY v POWERCRAFT (RETAIL) LTD [2008] UKEAT 0217_08_2606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0217_08_2606Case No Appeal Nos. UKEAT/0217/08/MAA, UKEAT/0221/08/MAAVenue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K WAYAPPELLANTPOWERCRAFT (RETAIL) LTDRESPONDENT
Before
Mr Justice BeanDate 26 June 2008
[1]APPEARANCES For the Appellant (MR K WAY) (The Appellant in Person) (MR S HANCOCK) (Representative) For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY PRACTICE AND PROCEDURE: Case Management An order striking out a claim or response cannot be made at a case management discussion. THE HONOURABLE MR JUSTICE BEAN The Claimant was employed by the Respondents as an accounts assistant from 26 May 2005 to 8 October 2007 when he resigned.[2]He lodged an application for compensation for unfair constructive dismissal on 30 October 2007.[3]A letter was sent to him on 26 November 2007 saying that a Chairman, Mr Hollow, had directed that a Case Management Discussion ("CMD") would be held to give directions relating to the preparation of the case for hearing and, if appropriate, to fix a date for the hearing. The letter indicated to Mr Way and to the Respondents what issues they must be able to discuss at the hearing. The letter stated that the discussion would be conducted by a Chairman by telephone, was expected to last no more than 30 minutes and would take place at the Exeter office of the Employment Tribunals on 13 December 2007 at 10.30 am.[4]The Respondents wrote by letter asking for that date to be rearranged on the grounds of unavailability of a witness. The regional office of the Employment Tribunals replied on 4 December refusing that application. There is a dispute which it is unnecessary to resolve about whether Mr Way then had reason to believe that the CMD would proceed on 13 December. It did proceed. The Respondents were represented. Mr Way did not attend; nor did he participate by telephone. Employment

Judge Tickle made an order contained in a judgment reading as follows:

"The claimant having failed to attend the Case Management Discussion on the 13 December 2007 and having had regard to the contents of the claim and response, the claim is struck out."
[5]An application was made on Mr Way's behalf for a review of that decision. The learned Judge refused the application for a review.[6]Mr Way appeals both against the decision to strike out and against the refusal of a review.[7]When the matter first came to the Employment Appeal Tribunal this appeal Tribunal requested the Judge to provide reasons for striking out the claim. It is necessary only to read paragraph 5. He wrote:
"I was satisfied that - (a) the claimant had notice of the hearing, (b) he had not asked for a postponement. (c) he had not replied to correspondence, either by the due date or at all, (d) he had been told that the hearing was to proceed despite a request to postpone it made by the respondent, and (e) he therefore had the opportunity to show cause why the case should not be struck out, namely by taking part in the hearing (though had he taken part, he would not, of course, have been struck out)."
[8]It is not clear either from the original decision or from the reasons I have just read out under which sub-paragraph of Rule 18(7) the Chairman was acting. It was clearly not Rule 18(7)(b); in particular, that the claim had no reasonable prospect of success. That much is clear from the Judge's concluding observation that had Mr Way taken part in the Case Management Discussion the claim would not of course have been struck out. So it was a procedural default. Presumably it was either18(7)(d) that the claim was not being actively pursued or 18(7(e) non-compliance with an order.[9]Whichever it was, it is plain in my judgment that the striking out order should not have been made. The experienced judge surprisingly appears to have overlooked Rule 17 of the Employment Tribunal Rules dealing with case management discussions, which reads as follows:
" (1) Case management discussions are interim hearings and may deal with matters of procedure and management of the proceedings and they [shall be held in private]. Case management discussions shall be conducted by a chairman. (2) Any determination of a person's civil rights or obligations shall not be dealt with in a case management discussion. … Orders and judgments listed in rule 18(7) may not be made at a case management discussion."
[10]The last sentence of Rule 17(2) above is sufficient in itself to say that this appeal must be allowed. Moreover, I am doubtful whether non-attendance at a case management discussion is a ground for striking out anyway. If it is to be exercised, then in the light of Rule 17(2) it would have to be exercised at a different type of hearing; and in my view it would plainly be wrong to exercise that power unless the parties had been warned in clear terms that failure to attend the case management discussion could lead to the claim or response, as the case may be, being struck out. The letter of 26 November 2007 contains no such warning. It is therefore unnecessary to go into the disputed question of whether the Claimant had reason to believe that the hearing was to proceed: even if all the learned Judge's findings are correct he had no jurisdiction to make the order which was sought.[11]The appeal must be allowed both against the striking out order and the refusal to grant a review. The case will be remitted to the Tribunal to proceed on the merits.