MRS E SUNLEY v HMP DURHAM [2009] UKEAT 0047_09_1203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0047_09_1203Case No Appeal No. UKEAT/0047/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS E SUNLEYAPPELLANTHMP DURHAMRESPONDENT
Before
His Honour Judge Peter ClarkDate 12 March 2009
[1]APPEARANCES For the Appellant MR JAMIE ANDERSON (of Counsel) Instructed by: Messrs Lees Lloyd Whitley Solicitors Riverside Park 1 Southwood Road Bromborough Wirral CH62 3QX For the Respondent MS HELEN WOLSTENHOLME (of Counsel) Instructed by: Treasury Solicitors Litigation & Employment Group One Kemble Street London WC2B 4TS SUMMARY PRACTICE AND PROCEDURE - Striking-out/dismissal / Review Review of strike-out decision. Employment Tribunal misunderstanding of agreed fact on material to exercise of discretion. EAT allowed appeal and exercised s35(1) Employment Tribunals Act 1996 powers. Application of CPR 3.9(1) factors, so far as material. Strike-out set aside. Remitted to Employment Tribunal for substantive determination. HIS HONOUR JUDGE PETER CLARK The parties to these proceedings before the Newcastle upon Tyne Employment Tribunal are Mrs Sunley ("Claimant") and HMP Durham ("Respondent"). This is an appeal by the Claimant against a judgment of Employment Judge John Warren, sitting alone on 5 November 2008, dismissing the Claimant's review application and confirming his earlier judgment dated 19 May 2008 striking out her claim. That judgment with reasons was promulgated on 4 December 2008. Background[2]By a Form ET1 presented on 16 May 2007 the Claimant, who was employed as a Prison Officer at HMP Durham, complained of unlawful sex discrimination contrary to the Sex Discrimination Act 1975 . The relevant incidents said to amount to sex discrimination were:(a) that on 17 November 2006, when she refused to work an extra shift, she was threatened with disciplinary action and was removed from self-rostering; her named male comparator was not; and(b) that on 13 December 2006 she was subjected to direct sex discrimination and victimisation when Senior Officer Rose and Governor Turner failed to support her in her bid for promotion.[3]By their Form ET3, denying the claims and dated 18 June 2007, the Respondent sought a stay of the proceedings on the basis that these matters were the subject of an internal grievance. The Claimant consented to a stay on 29 June 2007 and on 6 July 2007 the Tribunal ordered a stay. Further extensions of the stay were then ordered by consent pending the outcome of the internal grievance process. The stay continued in this way until 29 February 2008.[4]On 6 March 2008 the result of the Claimant's grievance was communicated to her. Dissatisfied with the outcome, she launched an internal appeal by email dated 18 March 2008. On that same day she moved home from 5 Pemberton Road, Blackhill, Durham, the address on her form ET1, to 7 Wesley Lea, Castleside, Consett, County Durham.[5]At that time, she was represented by solicitors. It was the Claimant's evidence to Employment Judge Warren, which he accepted (Reasons paragraph 21), that she wrote to her solicitors on 15 March informing them of her change of address. It seems that the solicitors also moved offices and did not receive her letter.[6]On 2 April the Claimant's solicitor received an email from the Respondent's representatives informing her that a decision had been made in respect of the grievance against which the Claimant was appealing. That day the solicitor emailed her client, the Claimant, asking her to contact her and update her immediately. On 7 April the solicitor wrote to the Claimant, presumably at her old address, stating that if she did not hear from the Claimant within seven days she would withdraw representation. Nothing was heard and representation was withdrawn by letter to the Tribunal of 15 April.[7]Also on 7 April, the Claimant's solicitors wrote to the Tribunal seeking a seven day extension if the Claimant wished to pursue her claim. On 21 April the Tribunal wrote to the Claimant's former address asking whether she wished to pursue her claim, and on 24 April wrote again to the Claimant at her old address warning her that unless she gave reasons why the claim should not be struck out under Rule 18(7)(d) of the Employment Tribunal Rules of Procedure 2004 within 14 days, the Tribunal may make a strike-out order. Nothing was heard from the Claimant and a strike-out order was made on 19 May.[8]The next communication from the Claimant came by way of email to the Tribunal dated 1 August. She said that she had only just had sight of the Tribunal's letter of 24 April when, she asserted, she had visited her former home the previous day, 31 July. That email was treated as an Application for Review; hence the hearing before Employment Judge Warren on 5 November. The Review Decision[9]Before Employment Judge Warren both parties were represented by counsel: Mr Anderson for the Claimant and Ms Bell for the Respondent. I have been shown the written arguments presented by counsel on that occasion. I note, in particular, that(a) it was accepted on behalf of the Respondent that the original strike-out order was susceptible to review under ET Rule 34; and(b) that Mr Anderson invoked on behalf of the Claimant the factors to be taken into account under CPR Part 3.9(1) when a court is considering an application for relief from sanction.[10]Employment Judge Warren did not have the advantage last November of reading the judgment of Elias LJ in Abegaze v Shrewsbury College of Arts & Technology [2009] EWCA Civ 96 , 9 February 2009. At paragraph 17 his Lordship said in relation to a strike-out under Rule 18(7)(d) (that is, striking out a claim which has not been actively pursued):
"17. The strike-out for failing actively to pursue the case raises some different considerations. In Evans Executors v Metropolitan Police Authority [1993] ICR 151, the Court of Appeal held that the general approach should be akin to that which the House of Lords in Birkett v James [1978] AC 297 considered was appropriate when looking at the question whether at common law a case should be struck out for want of prosecution. (The position in civil actions has altered since the advent of the Civil Procedure Rules.) That requires that there should either be intentional or contumelious default, or inordinate and inexcusable delay such that there is a substantial risk that it would not be possible to have a fair trial of the issues, or there would be substantial prejudice to the Respondent."
[11]Employment Judge Warren's reasoning in dismissing the Claimant's review application is summarised at paragraphs 26 to 28 where he said this:
"26. The events in this matter occurred nearly two years ago. It is true there was an ongoing investigation but the ongoing investigation is not about the incidents, it is about the way in which the investigation was carried out 27. Memories do fade and whilst it is clear from the correspondence that the parties both agree that the proceedings should be stayed up to 29 February 2008, it was then the claimant's solicitors who in fact suggested not that the stay be extended, but the claimant then give her particulars by 7 April. It was the claimant's solicitor's suggestion that matters should then move on. 28. Bearing in mind the time that has passed, I do think that that will prejudice a fair trial so taking everything into account I do consider that fault does lie with the claimant and, in all the circumstances and for the reasons set out, whilst allowing the review I confirm the judgment that the claim should be struck out and proceed no further as the claimant had failed to actively pursue her claim. In making that decision I have taken into account that the claimant is still in the employment relationship with the respondent."
Discussion[12]At the heart of this appeal is the Claimant's submission, through Mr Anderson, that Employment Judge Warren(a) misstated evidence; and(b) misunderstood evidence such that his decision was perverse in one of the senses more particularly identified by Mummery LJ in Yeboah v Crofton [2002] IRLR 634 , paragraph 95, where he said:
"Inevitably there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed."
[13]Specifically at paragraph 14 of his reasons, Employment

Judge Warren said:

"Alan Tallentire, Governor, concludes in a letter of 8 August 2008, 'I have decided to uphold your grievance that it is a grievance about the way the investigation was carried out and have commissioned a reinvestigation by an external team to Durham Prison.' "
[14]I have been taken to Governor Tallentire's letter. The final paragraph of that letter, in fact, reads as follows:
"I have considered the issues that you raised and reviewed the investigation. Having done so, I understand why you believe that further enquiries could be made. I have, therefore, decided to uphold your grievance and I have commissioned a reinvestigation to be carried out by a team external to HMP Durham."
[15]Secondly, in relation to the reinvestigation of the Claimant's grievance following that decision, Employment

Judge Warren said at paragraph 13 of his reasons:

"The grievance is still ongoing. It appears that the Claimant was dissatisfied with the way in which the investigation into her grievance was carried out, that witnesses, who should have been interviewed, were not and that the Claimant disagreed with evidence of SO Rose and Governor Turner. The Claimant's complaint is that the investigation was not conducted thoroughly and now seeks a reinvestigation."
[16]However, I have earlier referred to paragraph 26 of the Judge's reasons. Ms Wolstenholme accepts that the Judge was wrong to say that the ongoing investigation was not about the incidents complained of by the Claimant going back to November/December 2006. It was common ground below that a full rehearing of the grievance was to be carried out and this is borne out by the second grievance report dated 19 January 2009, which both parties agree I should admit by way of fresh evidence in this appeal.[17]I accept Ms Wolstenholme's submission that although the quotation at paragraph 14 of the reasons does not precisely reflect the words of Governor Tallentire's letter of 8 August, it does fairly summarise the concluding paragraph of that letter. However, I am unable to accept her submission that the misunderstanding of the agreed position at paragraph 26 is not material to the Employment Judge's decision. On the face of his reasons, the Judge proceeded to exercise his discretion as to whether or not to grant relief from sanction on the basis that the reinvestigation was a review of the original inquiry into the Claimant's grievance rather than a complete reassessment involving, I infer from the final report, reinterviewing the material witnesses.[18]That, it seems to me, has a material bearing on the important finding by the Judge that the Respondent would suffer prejudice at a final hearing because witnesses' memories do fade. No specific evidence of witness difficulties was placed before the Judge, and if he had properly appreciated that those witnesses were to be reinterviewed for the purpose of the second investigation, his approach may have been different. Applying Mummery LJ's guidance in Yeboah v Crofton , to which I have referred, I am persuaded by Mr Anderson that this is a case in which a material misunderstanding of the facts fatally undermines the judge's decision.[19]Accordingly, the appeal is allowed and the review decision is set aside. Disposal[20]In these circumstances, Mr Anderson invites me to exercise my powers under section 35(1) of the Employment Tribunals Act 1996 to determine the review application myself in order to avoid further delay and in the interests of saving costs. No further fact finding is necessary. Ms Wolstenholme asked me to remit the review application to the same employment judge. That may give rise to a perception of partiality on the part of the Claimant if, on remission, Employment Judge Warren, who now sits part time, reaches the same conclusion. I make it clear that I do not doubt the actual impartiality and professionalism with which this very experienced judge would approach the matter on remission, but on balance I prefer the approach suggested by Mr Anderson.[21]Turning, then, to the relevant CPR 3.9(1) factors, it being agreed that my approach in Neary v the Governing Body of St Albans Girls' School & Anor (UKEAT 0281/08/LA, BAILII: [2009] UKEAT 0281_08_0901 , 9 January 2009) should be followed in this case, I shall allow relief from sanction for the following reasons:(1) I take into account the importance of ensuring that parties actively pursue their cases and keep in contact with their representatives. I adopt the findings of the employment judge that the Claimant failed to keep in contact with her solicitor or respond particularly to the email of 2 April. As a result, she placed herself out of contact with the Tribunal when the unless order was made.(2) Having finally learnt of that unless order, she promptly applied for relief on 1 August.(3) Whilst I am not persuaded that she intentionally failed to comply with the unless order, she has no good explanation for her failure to do so. The home address change does not excuse her failure to keep in touch with her solicitor and, through the solicitor, the Employment Tribunal at least by email and/or by phone. The failure was hers and not her solicitor's.[22]Looking at the balance of hardship and whether a fair trial can take place, I find that the balance favours the Claimant. She will lose her cause of action altogether if relief is refused. I have seen no evidence that the Respondent will suffer prejudice, particularly where relevant witnesses have been asked to recall the events of November/December 2006 for the purposes of the grievance reinvestigation. There is no suggestion in the report of 19 January 2009 that any difficulty has been experienced in this respect.[23]I bear in mind the observation of Mance LJ in Meurig v Rex Makin [2003] EWCA Civ 1801 , paragraph 27, to which Ms Wolstenholme referred me, that because, as I find, a fair trial is possible, that does not necessarily mean that the strike-out must be set aside. However, taking all of the circumstances into account, my judgment is that it should be.[24]Finally, there is an outstanding order for the Claimant to serve further particulars of her claim dated 10 March 2008. That order was to be complied with by 7 April last year. I shall extend time for compliance with that order until seven days after the seal date of my order allowing this appeal and returning the matter for substantive hearing to the Newcastle Tribunal.