Thornton v Jones (Practice and Procedure : Appearance or Response) [2011] UKEAT 0068_11_2106

EAT
Thornton v Jones (Practice and Procedure : Appearance or Response)
[2011] UKEAT 0068_11_2106 · 2011-06-21
[1]There are before us two appeals. They have a complicated procedural history, and it will be convenient to set this out first before identifying the orders appealed against. We should say at the outset that the correspondence and orders of the Employment Tribunal are littered with confusions and misunderstandings, which have made it a good deal more difficult to identify what exactly has happened procedurally. Nevertheless, the central points are clear.[2]The Appellant had a shoe shop in Wrexham, trading as Footloose, though it has since closed. The Claimant had worked as an assistant there from 2000 to late 2003 and again from early 2004. Sadly, in June 2008 she was diagnosed with non‑Hodgkin’s lymphoma. She was off work for eight months while she received treatment. She returned to work in February 2009. It is her case that she requested a reduction in hours by way of a reasonable adjustment in the course of her convalescence, but that although that was initially agreed to the Appellant refused a subsequent request for a further reduction in hours, and she was in fact pressured to increase the hours that she worked. In the event she resigned on 24 June 2009.[3]On 5 August 2009 the Claimant presented a complaint in the Employment Tribunal alleging unfair constructive dismissal and disability discrimination by way of failure to make reasonable adjustments. The ET1 named the Appellant correctly and gave his correct address, but, carelessly, in the notice of the claim sent out by the Tribunal in accordance with rule 2 (2) of the Employment Tribunal Rules of Procedure his name was given as “Hornton” instead of Thornton. The notice was nevertheless duly delivered to, and opened by, him. It informed him that a response was required by 7 September 2009. Instead of complying with that request, he says that he wrote to the tribunal office in Cardiff to point out that his name had been got wrong. A copy of the letter that he says that he wrote was produced to us, though it was not produced to the Tribunal. Without prejudice as to any question as to its admissibility we will, for completeness, set out its terms, which were as follows:
“Dear Sir, In reply to your letter dated 10/08/09, I write to explain an error in the name. Your letter is addressed to Mr Shane Hornton, of which mine is Thornton please advise.”
We do not know whether that letter (assuming that it was indeed sent) was received by the Tribunal. In any event the Appellant does not suggest that he received any reply to it. It is his case that he thought that he need do nothing until he received a reply.[4]In circumstances where a respondent does not put in a response within the time provided by rule 4, rule 9 operates so as, in effect, to debar him from taking any further part in the proceedings. On 14 September 2009 the Appellant was sent a letter by the Tribunal to that effect.[5]On 30 September the Appellant spoke to someone in the tribunal office in Cardiff. The next day he wrote to the Tribunal as follows:
“Dear Sir In reply my phone conversation with Kate on the 30/09/09, I write this letter to appeal for the right to defend myself at the tribunal. As I explained to Kate, when the letter first arrived to my house, it was in the name of Mr Hornton not Mr Thornton. After seeking advice I was advised to write a letter to you explaining the error, of which I did. While waiting for a reply, I receive the letter saying I have not responded, and letter with a tribunal date. As I explained to Kate, I realize I should of sent form back as well, and only wish I had. Kate explained if I sent the form back right away there would be a possibility my right to defend myself, could be reinstated. As I explained to Kate I hope my wish will be granted because if not a big injustice will occur at the hearing if I can’t defend myself.”
He enclosed an ET3. The Grounds of Resistance are short, and give no real detail beyond saying the claim is ill‑founded. Subsequently the Appellant submitted a more fully pleaded response, saying that the first had had to be put together in a hurry.[6]On 13 October 2009 the Tribunal wrote to the Appellant saying that his letter of 1 October had been treated “as an application for a review”. The letter is unhelpful. Although it says that the decision to review had been made by “the Judge”, the identity of the Judge in question is not given, which is a breach of good practice. More to the point, it does not identify the relevant rule or the decision which is to be “review[ed]”. The Claimant protested at the decision to permit a review, but the Tribunal wrote on 24 October confirming that “the Employment Judge has directed that the matter is now listed for a Review Hearing,” saying that details would follow. Again, the letter gives no information about the nature of the hearing or the identity of the Judge.[7]Subsequently the parties were sent a document headed “Notice of Pre‑Hearing Review”, informing them that a PHR would occur in Abergele on 22 March 2010. That letter, too, was careless and unhelpful. It was undated, and there was a sentence beginning “The matters to be clarified and, if appropriate, decided at the PHR are…”, but what followed was a blank. Whatever rule had in fact been relied on by the Judge who made the original direction for a review, the intended hearing was plainly not a PHR under rule 18.[8]Someone seems belatedly to have spotted the problem about the notice because on 5 March 2010 an amended notice was sent out, for the same date, referring simply to a “Review Hearing”; but there was still no identification of what was being reviewed.[9]It is the Appellant’s case, though this is not in the end central to the basis on which we will decide the appeal, that that correspondence from the Tribunal gave him no real indication of the nature of the hearing. He understood that in fact the hearing would be a substantive hearing at which he would have the opportunity to present his defence. To a lawyer, or even a well‑educated layman, it should have been apparent that that was not the case; but certainly it can be said that the Tribunal’s correspondence gave the parties very little help as to the nature of the issue and what was to be decided.[10]The hearing duly took place at Abergele before Employment Judge Thomas on 22 March 2010. The Appellant appeared in person. The Claimant was represented by a Mrs Karen Leach, who had been named as her representative from the start: as we understand it, she is not a lawyer. By a Judgment sent to the parties on 1 April, though no doubt recording a decision announced at the hearing,

the Judge decided that:

“The Application to Review the decision of 14 December 2009, to disentitle the Respondent to take any part in the proceedings, is rejected.”
The reference to “the decision of 14 December 2009” is puzzling. We are aware of no decision of that date. We can only explain it on the basis that this was a typographical error for 14 September 2009, being the date of the letter notifying the Appellant that he was not entitled to defend the claim. That letter did not in fact represent a judicial decision, but we return to that point in due course. We should also note that in a further piece of carelessness the date of the hearing is given on the Judgment as being 26 March rather than 22 March.[11]It appears that the Appellant asked for written Reasons. These were sent to the parties on 4 June. There is another puzzle here. In the Tribunal’s eventual substantive Judgment, to which we will come shortly, the review application is said to have been dismissed on 30 July. We cannot see where that date comes from: as we have said, the hearing itself was on 22 March, the formal order was sent to the parties on 1 April and the Reasons on 4 June. Fortunately nothing turns on this.[12]A hearing of the Claimant’s substantive claim was fixed for 12 August 2010 at Shrewsbury. Notice of the hearing was given to both parties, though of course following the rejection of his review application the Appellant could effectively take no part by reason of the operation of rule 9. It does not appear that he fully understood that that was the case; but, whether he did or not, he was of course entitled to attend as an observer. In the event the venue was changed to Abergele. The Appellant says that he received no notice of that change, and the hearing proceeded in his absence, he having gone to Shrewsbury rather than Abergele, before a Tribunal chaired by Employment Judge Hoult. A Judgment with Reasons was sent to the parties on 12 November 2010 - that is, some five months later. There is yet another procedural puzzle about this. The final paragraph of the Reasons says:
“11. This Judgment with Reasons was given at the request of the Respondent and given that the Respondent was not present a copy of the Claimant’s statement and the bundle of documents will be sent to the Respondent.”
But that makes no sense. The question of the Respondent (that is, the Appellant before us) requesting Reasons would only arise once there had been a Judgment (see rule 30), and on the face of the record there was no Judgment until 12 November. What we think must have happened is that an oral Judgment was issued at the end of the hearing, but, irregularly, no written record was made, as required by rule 29 (1), until several months later.[13]The decision of the Tribunal, whenever formally it was made, was that the Appellant was liable for both unfair dismissal and disability discrimination. Compensation was awarded in the sum of £9,419.45. The largest part of that award consisted of compensation for loss of earnings for a period of something over a year - that is, until August 2010.[14]We should mention for completeness two other parts of the story, though they are not in the end relevant to our decision. First, by letter dated 27 August (that is, in the long interval between the hearing on 12 August and the promulgation of the Judgment and Reasons) the Appellant applied for a review of the decision that he understood to have been made on 12 August. By what is described as a Judgment and Reasons dated 5 November, on a preliminary consideration under rule 35, Judge Hoult refused to direct a review. Secondly, following the substantive decision the Appellant applied for a review of the Tribunal’s decision as regards compensation. The application for a review was granted, but the review hearing itself has been stayed.[15]The appeals before us are(a) against the decision to refuse a review on 22 March and(b) against the substantive decision apparently made on 12 August, though not incorporated in a Judgment until 12 November. The Appellant has been represented by Mrs Sarah Stanzel, appearing under the auspices of the Bar Pro Bono Unit. The Claimant has elected not to appear but relies on her previous written representations, which we have taken into account.[16]The Appellant has put together a bundle for the purpose of the appeal. It is not, we are bound to say, as helpfully arranged as it could have been. Mrs Leach, on behalf of the Claimant, has written to object to the inclusion of certain documents in it. Some of these are documents recording communications between the parties and ACAS: we have paid no attention to these documents. Others are objected to on the basis that they were submitted out of time, particularly the two versions of the ET3. The position as regards those is of course different, and we are entitled to have regard to them for the purpose of deciding the issues on this appeal.[17]As regards the first of the two decisions appealed against, the Judge, with respect, rather mis-stated the formal nature of the exercise that he was undertaking. He was not, contrary to the terms of the Judgment, which are also reproduced in the Reasons, reviewing any “decision to disentitle the Respondent to take part in the proceedings”. There had been no such decision: rule 9 operates automatically (see D & H Travel Ltd v Foster [2005] ICR 1537 at paragraph 14). The correct course for a respondent who has not put in a response in time, and so has fallen foul of rule 9, is to put in a response late, which will necessarily be rejected by the Tribunal; and then to apply to review that rejection under rules 6 (6) and 34 (3) (e) (see Moroak (t/a Blake Envelopes) v Cromie [2005] ICR 1226 ). The Appellant has of course submitted a late ET3: indeed, as we have explained (see para. 5 above), he has submitted two. We cannot see that the first of those ET3s was ever explicitly rejected (unless, though we think not, this was the decision of 14 December referred to in the Judge’s order - see para. 11 above); but the decision in D & H shows that this Tribunal should be astute to find an implied rejection even if none is expressed. It seems to us clear that in practice what the Judge was doing at the hearing of 22 March, although he failed to appreciate it, was refusing to accept the late‑lodged ET3.[18]However, that error on the part of the Judge in describing the nature of his decision would not matter if in substance he had carried out the right exercise. The correct approach in a case of this kind was prescribed by Burton J in Pendragon Plc v Copus [2005] ICR 1671 , which makes it clear that a Tribunal should apply the principles set out in a slightly different context in Kwik Save Stores v Swain [1997] ICR 49. We will not set out the guidance in Kwik Save in extenso . It can be sufficiently summarised for present purposes as follows. The Tribunal is entitled to exercise a broad general discretion in the interests of justice: this is not, therefore, a case where restrictive rules are applied, such as are applied in this Tribunal in extending time for the lodging of a Notice of Appeal. The Respondent’s explanation for his failure to lodge a response in time will always be relevant. If the failure represents some kind of procedural abuse or intentional default, that will obviously weigh heavily against the grant of an extension. Conversely, to use Mummery J’s words at page 55, if the delay:
“[…] is the result of a genuine misunderstanding or an accidental or understandable oversight, the Tribunal may be much more willing to allow the late lodging of a response.”
The length of the delay is also always a relevant factor. But Mummery J makes the point in Kwik Save that these are not the only factors: it is always necessary also to consider the prejudice to the parties if the extension is either granted or not granted. In this connection, the merits of the respondent’s defence will always in principle be relevant, because it is obviously a serious matter for a respondent to be held liable, because of a procedural default, for a wrong that he may not in fact have committed: see in particular the passage at page 55 F-H in Kwik Save .[19]The Judge did not in his Reasons refer to any authority, and how he directed himself can only be established by looking at his actual reasoning. This can be summarised as follows.

The Judge starts by saying, at paragraph 3:

“This application is not about the merit of the substantive case, it is whether or not I should exercise the discretion within the rules to allow the matter to proceed defended rather than undefended. Rule 34(3)(e) requires me to consider ‘the interest of justice’, which means justice for both sides.”
That is unexceptionable as far as it goes, though the observation that the application is not about the merits of the substantive case is dangerous if it means that the Judge disregarded the merits altogether.[21]The Judge then proceeds to examine the reasons for the Appellant’s failure to put his response in in time. He appears to have accepted that the Appellant had written to the Tribunal to point out the error in his name: see paragraph 6 of the Reasons. It is fair to say that the Judge used the phrase “so he says”; but if he was going to reject the Appellant’s evidence he would have had to make a firm finding to that effect. However, he took the view, which we would certainly share, that the need to correct the error in his name was not objectively a good reason for the Appellant not lodging the ET3 in the meantime: indeed, as we have noted, the Appellant himself recognised that in his letter of 1 October (see para. 5 above).[22]The Judge then goes on to examine the reasons for the delay of approximately a fortnight between the Appellant’s receipt of the letter of 14 September telling him that he was debarred from defending and his telephone call to the Tribunal on 30 September followed by his letter the next day. The Appellant apparently gave evidence that this delay was because he was on holiday, but the Judge was unconvinced by that explanation and commented “I conclude that the respondent simply ignored the rules and put his head in the sand”. It may well be, if the Judge did not find any good reason for the 14‑day delay in question, that he was entitled to make that comment in that connection; but we are bound to say we could not regard it as a justified comment on the total sequence of events as found by the Judge. On any view, the Appellant did make some response to the original ET1, albeit not the right response; and though he did not respond at once to the letter of 14 September he did do so within two weeks.[23]Finally,

the Judge concluded, at paragraph 11 of the Reasons:

“I look for a good reason why these rules have been breached and if there is no good reason then the rules must prevail. Under these circumstances I consequently find that there are no grounds that the interests of justice request a review. The matter will now proceed undefended.”
[24]Mrs Stanzel submits that that reasoning was plainly defective because the Judge proceeded, contrary to the principles set out in Kwik Save and applied to this class of case in Pendragon , on the basis that the only question was whether a good reason had been shown for the Appellant not putting in his response in time. The Judge failed to give any consideration to the balance of prejudice and, in that context, to the merits of the defence.[25]We can see no answer to that submission. It is indeed plain that the Judge decided the case only on the limited basis set out in the Reasons. That misdirection would not matter if the decision was one that was bound to be the same if the correct principles had been applied, but we are not prepared to say that this is such a case.[26]We must therefore allow the appeal against the decision of 22 March 2010.[27]The question then arises whether the review application should be remitted to the Tribunal for reconsideration or whether, as Mrs Stanzel invited us, we should use our powers under section 35 of the Employment Tribunals Act 1996 and decide that question for ourselves. We think we should take the latter course. This case has been going on for a long time already. If we remit the review issue to the Tribunal, there will be a further substantial delay before, depending on the outcome, the case comes to a full hearing. We believe that we are in as good a position as the Tribunal to decide the question. We bear in mind that the Claimant has not been present or represented on this appeal to put her side of the case; but that was her choice, and we are in any event confident that we are aware of the points that she would wish to make.[28]In our view a late response should be admitted in the terms of the revised version of the Appellant’s ET3. We believe that this is the right course in the interests of justice. That is for essentially three reasons:(1) While the Appellant undoubtedly acted foolishly in not submitting a response at the same time as protesting about the mis-spelling of his name, it is not as if he did nothing: he did write to the Tribunal. We would attach weight to that point simply on the basis of the Tribunal’s findings, but it is reinforced if we have regard to the terms of the letter itself, as lodged with us, which ends with the phrase “please advise.” We should also note that Mrs Leach herself makes the point in correspondence, and the Judge made a finding, that following receipt of the ET1 the Appellant got in touch with the Claimant and with ACAS in order to see how the matter might be resolved. That too does not suggest a party who simply wishes to ignore the whole case.(2) Even if, as the Judge found, there was no real excuse for the delay between 14 September and 1 October, that delay was not very long.(3) Importantly, we think that the prejudice to the Claimant of having to have her claim now reconsidered at a fresh hearing is outweighed by the injustice to the Appellant of having a serious finding made against him, attracting a substantial award of compensation, in circumstances where he has not been able to put his side of the case. As to that, we should say as little as possible about the merits. We need only say that we are satisfied that there are at least arguable points on the merits of the claims, both of disability discrimination and of unfair dismissal (in the latter case, more specifically, of whether the Claimant was entitled to resign when she did). We should also say that there are arguable points about quantum. In particular, the Tribunal was unaware at the time that it made its award for loss of earnings that the Footloose shop had in fact closed down in August 2009 - that is, only two or three months after the Claimant’s resignation. It is, for obvious reasons, at least arguable that that puts a terminus on the period for which loss of earnings should have been awarded.[29]Accordingly we not only allow the appeal, but we direct that the amended response form, which appears in our bundle at pages 41‑45, should stand as the Respondent’s response in these proceedings.[30]It follows from that decision that rule 9 will cease to apply. It also follows that the second appeal must succeed, since the Appellant was not given the opportunity to appear at the hearing.[31]We leave it to the Tribunal to decide what directions are necessary, but it seems to us that there will almost certainly need to be a case management discussion.[32]We will order that this Judgment be transcribed so that the Claimant knows the basis of our decision.