MISS E MANNING v ROYAL BANK OF SCOTLAND GROUP PLC [2009] UKEAT 0079_09_1607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0079_09_1607Case No Appeal No. UKEAT/0079/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS E MANNINGAPPELLANTROYAL BANK OF SCOTLAND GROUP PLCRESPONDENT
Before
His Honour Judge Peter ClarkDate 16 July 2009
[1]APPEARANCES For the Appellant MR J SYKES (Consultant) Employment Lawyers Ltd 107 Fleet Street London EC4A 2AB For the Respondent MRS E BELL (Solicitor) Messrs Brodies LLP Solicitors 2 Blythswood Square Glasgow Lanarkshire G2 4AD SUMMARY PRACTICE AND PROCEDURE Review Appellate jurisdiction/reasons/Burns-Barke Claimant representative failed to attend review hearing on time – application dismissed. Relief against sanction. Inadequate reasoning. Case remitted for review hearing before fresh Employment Tribunal Judge. HIS HONOUR JUDGE PETER CLARK The parties in this matter, which has been proceeding in the Birmingham Employment Tribunal, are Ms Manning, Claimant, and Royal Bank of Scotland Group Plc, Respondent. This is an appeal by the Claimant against what is described by Employment Judge Monk as her refusal of a review application dated 1 December 2008. Procedural history[2]By a form ET1 lodged with the Tribunal on 30 May 2008 the Claimant complained of unfair constructive dismissal, protected disclosure detriment, failure to pay notice pay and failure to provide a statement of her terms and conditions of employment on the part of the Respondent, her former employer. The claims were resisted.[3]On 29 July 2008 the Respondent requested Further and Better Particulars of the claim. On 15 August 2008 the Tribunal ordered the Claimant to provide the Particulars by 29 August 2008. The Claimant applied for an extension of time to provide the Particulars and the Tribunal ordered an extension to 11 September 2008.[4]On 4 September 2008 the Respondent applied for an unless order requiring the Claimant's compliance by 11 September 2008. On 15 September 2008 the Tribunal granted an unless order; the date for compliance being 22 September 2008. Mr Sykes takes a point in this appeal that the "unless" part of the order was not clearly set out. I disagree. The order at page 59 of the EAT bundle contains a clear warning complying with Rule 13(2) of the Employment Tribunal Rules.[5]The Respondent contends that the Claimant failed to comply with the unless order and thus the claim was automatically struck out under Rule 13(2) on that failure. A Pre-Hearing Review (PHR), fixed for 1 October 2008, was cancelled as a result of the automatic strike-out.[6]On 2 October 2008 the Claimant applied for a review of the Tribunal's order dated 24 September 2008 made by Judge Monk which(a) cancelled the PHR, and(b) recorded that the claim had been struck out for non-compliance with the unless order.[7]Without repeating the discussion in my judgment in Neary v The Governing Body of St Albans Girls School & Anor (UKEAT/0281/08/LA, 16 October 2008) what the Claimant's application amounted to, although framed under Rule 10 of the Employment Tribunal Rules, was an application for relief against sanction by way of review, analogous to the procedure under CPR 3.9. In that application it was contended on behalf of the Claimant that she had complied with the order for Particulars, albeit out of time, on 24 September 2008, and that no prejudice had been caused to the Respondent. I interpose that in submissions Mrs Bell made clear that the Respondent does not accept that the Particulars dated 24 September 2008 sufficiently meet the unless order.[8]By a letter dated 8 October 2008 Judge Monk indicated that the case would be listed for a review hearing. That hearing was listed before her for 4 November 2008 at 9.45am. Neither the Claimant nor her representative, Mr Sykes, appeared at the appointed time. The Respondent was represented by a solicitor, Miss MacGregor. As a result Judge Monk gave a judgment in these terms:
" Judgment Upon the non-attendance of the Claimant her application for a review made on 2 October 2008 is dismissed and, for the avoidance of doubt, the order made on 15 September that unless the Claimant comply with that order by 22 September the claim be struck out for non-compliance is confirmed. The claim was struck out on that date as the Claimant failed to comply. The Respondent reserves its position in relation to costs."
[9]The Claimant did not appeal the 4 November 2008 judgment, promulgated the following day, but on 4 November 2008 the Claimant applied for the review application to be relisted. Mr Sykes there explained that, realising he would be delayed, he telephoned the Tribunal at 9.58am informing them that he would attend at 10.30am. At that time he telephoned to say he would attend at 10.45am. At 10.55am he was informed that the review was dismissed at 10.05am. He questioned whether the Employment Judge had considered his submissions dated 2 October 2008 before dismissing the review application.[10]That application was opposed by the Respondent by letter dated 11 November 2008 and on 10 November 2008 the Tribunal wrote to the Claimant's representative on the instructions of

Judge Monk in these terms:

"Is the claimant's representative's letter dated 4/11/2008 a request for review? If so, on what basis does he say a review decision can be reconsidered?"
He was asked to reply in writing by 18 November 2008.[11]Mr Sykes responded to that inquiry on 25 November 2008. He relied on the overriding objective, repeating his contention that the Judge could not, in five minutes, have considered justly and fairly whether the claim should be struck out. He then embarked on criticism of the Respondent's representative, which strikes me as being both immaterial and unjustified, and concluded by inviting the Judge to reopen the application (that is for review).[12]The Respondent's solicitor responded by a letter dated 26 November 2008. Having considered the rival contentions the Judge made her decision on 1 December 2008, the subject of this appeal. I should set out that decision and the Judge's reasoning in full:
"REFUSAL OF REVIEW APPLICATION Employment Tribunal's Rules of Procedure 2004 Your application for a review of the decision was referred to Employment Judge Monk. Your application for review has been refused because the Judge considers that there are no grounds for the decision to be reviewed under Rule 34(3) and there is no reasonable prospect of the decision being varied or revoked. Reasons: 1. On 15 September 2008, the Tribunal issued an order that unless the Claimant provided the further and better particulars sought by 22 September 2008; the claim would be automatically struck out at the date of non compliance. The Claim was automatically struck out when the Claimant failed to comply with the unless order. 2. On 2 October 2008 the Claimant applied to review the strike out judgment. The review hearing was set down for 4 November 2008 at 9.45am. 3. On 4 November 2008 neither the Claimant nor her representative was present at 10.00am when the Tribunal was due to start. Having checked that there was no message from the Claimant's representative and having already read both parties submissions, I dismissed the application for a review and confirmed that the claim was automatically struck out on 22 September 2008. 4. The Claimant's representative requests that the hearing of 4 November 2008 be 'set aside' and the review hearing relisted on the grounds that he was delayed photocopying on the morning of the hearing. He alleges that he telephoned the Tribunal at 9.58am to say that he would arrive by 10.30am (in fact he arrived at 10.45am) and that it would be in the interests of justice. The claimant's representative has been asked to clarify on what basis he believes that the judgment of 4 November 2008 can be reviewed and states that he relies on 'r10, Regulation 3(1)(2) schedule 1.' 5. Having considered the representations of both parties I do not consider that there is any basis on which the judgment can or should be reviewed. Further I do not consider that there would be any reasonable prospect of either the judgment of 4 November 2008 or the unless order of 22 September 2008 being varied or revoked."
The Appeal[13]Due to the particularly helpful submissions of both Mr Sykes and Mrs Bell, the issues in this appeal have crystallised to such an extent that I am able to state my conclusions as follows:(1) I am satisfied, as Mrs Bell accepts, that the Employment Judge's judgment dated 5 November was properly so called.(2) I do not accept Mrs Bell's submission that the Claimant's review application of 2 October 2008 was determined on 4 November 2008 so that that judgment could not be reviewed. In so far as the Judge believed that it was not a judgment that can be reviewed (1 December 2008 reasons, paragraph 5) she was, in my judgment, in error.(3) I agree with Mr Sykes that even if, as Mrs Bell submits, his application dated 2 October 2008 was made under Rule 10(2)(n) rather than Rule 34 (review), the Employment Judge treated it as a review application for the purposes of her 1 December 2008 decision and that is the decision now under appeal.(4) Assuming that the Judge considered the parties' submissions before dismissing the application for review on 4 November 2008, as she indicates at paragraph 3 of her 1 December reasons, thus complying with Employment Tribunal Rule 27(6), I am not persuaded that she has provided adequate reasons to explain why (see paragraph 5) relief against sanction ought to be refused. The reasoning is not " Meek " ( Meek v City of Birmingham District Council [1987] IRLR 250 ) compliant. That is a material error of law on the facts of this case where Ms Manning has not had her case considered on its merits.(5) Mr Sykes submits that his non-attendance was not material to the Judge's decision not to review the 5 November 2008 judgment. I reject that contention. It seems to me that his non-attendance was central to the Judge's decision to dismiss the review application, the hearing of which she herself had originally ordered.(6) As Mrs Bell further accepts, Mr Sykes' non-attendance at the appointed time, leading to the hearing being terminated, is a matter which could be remedied in costs.(7) In these circumstances I shall allow the appeal and set aside the order of 1 December 2008 under appeal. Disposal[14]Mr Sykes urges me to hold the review hearing which was due to take place on 4 November 2008 here and now, adopting my powers under section 35(1) of the Employment Tribunal's Act 1996 , in the interests of saving the costs of remission and celerity. I pause to observe that, in my view, the delay has been caused solely by Mr Sykes' failure to attend the 4 November 2008 hearing on time.[15]Mrs Bell submits that further evidential investigation is required at the review hearing and this ought to be dealt with by remission to the Employment Tribunal. Further, that I should remit the matter to the same Employment Judge.[16]Having considered the rival contentions I have concluded that the proper course is to remit the matter to the Employment Tribunal but to a different Employment Judge, not because I accept Mr Sykes' complaint that Judge Monk has adopted a cursory approach to the case, but purely as a matter of perception. Having expressed, without, in my judgment, proper reasons, a firm view as to the merits of the review application on 1 December 2008 the substantive hearing of that application ought to go before a different Employment Judge.[17]Finally, I shall expressly reserve to the next Employment Judge any application by the Respondent for costs.