MR J LEON v TRANS GLOBAL FREIGHT MANAGEMENT LTD [2009] UKEAT 0200_09_1310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0200_09_1310Case No Appeal No. UKEAT/0200/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J LEONAPPELLANTTRANS GLOBAL FREIGHT MANAGEMENT LTDRESPONDENT
Before
His Honour Judge HandDate 13 October 2009
[1]APPEARANCES For the Appellant MR J LEON (The Appellant in Person) For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY PRACTICE AND PROCEDURE: Striking-out/dismissal Where a Claimant is in custody as a result of the imposition of a sentence of imprisonment that is a factor which should be considered by the Employment Tribunal in exercising its discretion to strike out for non compliance with an order for disclosure. HIS HONOUR JUDGE HAND QC This is an appeal against a judgment of Employment Judge Lewis sent to the parties on 17 February 2009 striking out the Appellant's claim of unfair dismissal because of his failure to actively pursue it.[2]The Employment Tribunal had written to the Appellant on 27 January 2009 giving him the opportunity to give reasons as to why the claim should not be struck out. Paragraph 2 of the judgment, which appears at page 1 of the bundle, records that "no such reasons" had been given and paragraph 3 "therefore" orders the claim to be struck out. On 24 April 2009 the President of this Tribunal considered the papers in this case in Chambers and by written order dated 5 May he directed that the appeal should proceed to this full hearing.[3]The Appellant, Mr Leon, has appeared in person today. The Respondent's solicitors wrote to this Tribunal on 12 May 2009 in the following terms:
"Our client intends to oppose this appeal and will rely solely on the grounds relied upon by the Employment Tribunal for making the Judgment dated 17 February 2009. On the basis that our client has nothing further to add, they do not intend to take an active part in the rest of the appeal process."
[4]The Appellant was employed as a warehouseman by the Respondent between July 2005 and 22 September 2008 when he was summarily dismissed for what was alleged to have been gross misconduct. On 29 October 2008 his complaint of unfair dismissal was received by the Employment Tribunal in Reading. On 25 November 2008 the Respondent's Notice of Appearance was also received and then the Employment Tribunal made a Case Management Order on 16 December 2008. Amongst other things it ordered Disclosure by List within 21 days.[5]The Respondent had a number of documents to disclose and its list was compiled by the solicitors appearing on its behalf, Cripps Harries Hall LLP, who are the authors of the letter of 12 May 2009 to which I just referred. The Respondent's list was sent out to the Appellant on or about 5 January 2009. There was no response. The date of hearing had been fixed by the Employment Tribunal for 26 February 2009.[6]Having written to the Appellant enclosing the list of documents on 5 January 2009 and having received no reply, the solicitors acting on behalf of the Respondent wrote again on 8 January 2009. A copy of that letter appears at page 34 of the bundle. The letter indicated that if the list was not received by 12 January an application would be made to the Employment Tribunal for what is called an Unless Order. On 13 January 2009, not having heard anything from the Appellant, the solicitors acting for the Respondent wrote the letter that appears at page 33 of the bundle to the Employment Tribunal. The letter seeks an Unless Order.[7]On 27 January 2009 the Employment Appeal Tribunal wrote to the Appellant. The letter is at page 38 of the bundle. All correspondence had been addressed, both by the Employment Tribunal and by the solicitors acting for the Respondent, to [an address], Middlesex. The Employment Tribunal's letter was entitled "Strike Out Warning" and asked for the Appellant to give reasons "to object to this proposal". The proposal referred to is the striking out of the claim. The response was to be sent to the Employment Tribunal by the Appellant by 3 February 2009.[8]It is at this point in the history that the Appellant's former partner, LL, now appears. By a letter dated 30 January 2009, which she wrote to the Employment Tribunal, she explained why Mr Leon, the Appellant, had not responded. The letter is at pages 39 to 40 of the bundle. She explained that the Appellant had been in custody since 12 January 2008. She apologised for the delay and asked for further correspondence to be sent to her. She said that Mr Leon had given her authorisation to open the letter. She had not been in a position to open his letters previously because they had been marked private and confidential. She had then informed Mr Leon that he had received the correspondence and he had given authorisation.[9]Today Mr Leon has explained the circumstances with greater particularity. He had been arrested and remanded in custody, with effect from 10 November 2008, in connection with alleged threats to kill LL. At that time he was remanded in custody to HMP Wandsworth. During the time that he was in custody in Wandsworth, which I understand to have been some three-and-a-half months, he was not directly in contact with his former partner. Given the allegations made against him this is hardly surprising. She had, however, been in contact with his parents about the correspondence. They had raised that matter with him and he had given, through them, authorisation to Ms LL to open the correspondence.[10]Returning to the letter that she wrote that is dated 30 January 2009, it is pertinent to observe that she made no suggestion as to disclosure. In fact it may be that disclosure on the part of the Appellant in this case would be limited. Whilst it is not a matter for me, I took the opportunity to ask what documents he might wish to rely upon and he indicated that the only document that he could think of this afternoon was a police statement that indicated that the police were not going to proceed against him in respect of the alleged gross misconduct.[11]The letter of 30 January from Ms LL must have reached the Employment Tribunal because it is referred to in a letter written to the Appellant at [an address] on 6 February, or rather it is dated 6 February 2009.[12]The letter reads as follows:
"REQUEST FOR INFORMATION Employment Tribunal's Rules of Procedure 2004 Dear Sir, Further to your letter of 30 January 2009, Employment Judge Lewis has directed that you write to this office, within 7 days of the date of this letter, if the criminal proceedings which the claimant now faces arise out of the same events as his dismissal."
[13]That is a curious letter. Firstly, it is addressed to the Appellant whereas the author of the letter of 30 January 2009 was the Appellant's former partner, LL. Secondly, the letter contains, in its grammatical syntax, a curious transposition from the direct "your letter" to the indirect "the claimant now faces". This indicates to me that it was appreciated by the Employment Tribunal that whilst the letter was addressed to Mr Leon it was at least possible that it would not be answered by him. Indeed that proved to be the case.[14]On 11 February 2009 LL wrote again to the Employment Tribunal. It is worthwhile quoting her letter in full. It reads:
"I am Mr Johnny Leon partner and I was the one who wrote you the letter on 30 th January 2009 on behalf of Mr Leon. Further to your letter dated on 6 th February 2009 which was received on 10 th February 2009 in regards to Mr Leon criminal proceedings. I am writing to let you know that Mr Johnny Leon criminal proceedings are not related of the same events as his dismissal. Mr Johnny Leon had a breakdown shortly after his dismissal resulting him being charged of Domestic Violence offences in our home. On the 6 th February 2009, Mr Johnny Leon pleaded guilty to the Domestic Violence offences and he was sentenced to 3 months imprisonment. In the meantime you can contact me if you need further assistance."
The letter is signed by LL. In fact Mr Leon tells me this afternoon that he was sentenced to 12 months imprisonment by a court in Wimbledon. He remained in custody until 18 August 2009.[15]Having received that letter the Employment Tribunal struck out the claim on 17 February 2009. The Notice of Appeal in this case raises both error of law and perversity as grounds of appeal. Paragraph 13 of the grounds of appeal indicates that the Appellant feels that he has been unjustly dealt with. He has in fact been deprived of a hearing of his case on the merits. Paragraph 15 of the grounds of appeal asserts that there is no substantial evidence against him. That is not a relevant consideration in relation to this appeal.[16]The issue in this case, as it seems to me, is whether the Employment Tribunal in striking out the case for the Appellant's failure to comply with the order made as to disclosure was exercising its discretion properly. The exercise of discretion can only be challenged on appeal as giving rise to an error of law if either the person who is exercising the discretion has left out of account material that ought to have been brought into account or, on the contrary, has taken notice of material that ought to have been left out of account.[17]In this case the Employment Tribunal had asked for reasons as to why the case should not be struck out for failure to comply with the directions that had been given on 16 December 2008 and with the subsequent warnings that had been issued in the form of the letter of 27 January. The judgment asserts that the Claimant had given no reason as to why his claim should not be struck out. It seems to me that assertion is an indication that the Employment Judge was not exercising his or her discretion properly.[18]To say that no reason had been given seems to me a clear indication that the Tribunal were leaving out of account the fact that information had been given to the effect that the material had not been drawn to the Appellant's attention because he was in custody and, as may be implicit in that, in any event, given his situation, it would be extremely difficult for him to have responded.[19]The merits of all that have never been investigated and, in endeavouring to understand the factual background to his appeal, I have not sought to investigate them let alone adjudicate upon them. These are matters that should be dealt with by the Tribunal at first instance but they are components of the exercise of any discretion as to whether the case should go ahead and be heard on its merits or not.[20]The judgment of the Employment Tribunal seems to me to indicate quite clearly that the reasons apparent in the letter from Ms LL either were ignored or were given no weight whatsoever. It seems to me that they should at least have been considered and, if rejected, there should have been a reasoned basis for that rejection set out in the judgment of the Employment Tribunal.[21]In those circumstances the appeal must be allowed and this case must be remitted to the Employment Tribunal for the Employment Tribunal to consider whether, given the factual circumstances, the claim should be struck out or whether it should be allowed to proceed.[22]Accordingly, I will allow the appeal and direct that the matter is remitted for the issue of the strike out to be considered against the reasons advanced by the Appellant and, in particular, by his partner in the correspondence.