Patel v Babcock Airports Ltd (Practice and Procedure : Review) [2012] UKEAT 0037_12_1106

EAT
Patel v Babcock Airports Ltd (Practice and Procedure : Review)
[2012] UKEAT 0037_12_1106 · 2011-07-11
[1]This is an appeal by Mr Baku Patel (“the Claimant”) against a decision of Employment Judge Hill dated 20 July 2011. By her decision she refused to review a judgment dated 11 July 2011 striking out the claim for unfair dismissal which he had brought against Babcock Airports Limited (“the Respondent”). The background[2]The Claimant was employed by the Respondent from 31 March 2008 until 6 December 2010. He was summarily dismissed on the grounds that, while signed off sick and receiving sick pay, he carried out work in his own business. He commenced proceedings for unfair dismissal on 2 March 2011. He says that the Respondent had always known (from his CV and his job interview) that he had his own photography business; all he did was attend two weddings, once as a guest and once with a colleague who did the photography and video; what he did was neither dishonest nor a breach of contract; and he was not given a fair hearing. I emphasise that the merits of his claim for unfair dismissal have not been tested, for reasons to which I shall now come.[3]On 28 April 2011 at a pre-hearing review directions were given to prepare for a hearing, listed to take place on 22-23 August 2011. Disclosure was ordered to take place by 19 May 2011. The directions order was typed up by the Tribunal and sent out bearing the date 16 May 2011.[4]On 16 June 2011 the Respondent’s representatives wrote to the Tribunal saying that it had sent its list of documents to the Claimant on 23 May, but he had not provided his list, despite a reminder.[5]On 27 June 2011 the Tribunal prepared a letter informing the Claimant that Employment Judge Hill was considering striking out the claim because he had not complied with the order dated 16 May. The letter said that if he wished to object to the proposal he should give his reasons in writing by 5 July 2011. The letter bears the address “Mr B Patel BY EMAIL”. In his ET1 claim form the Claimant had given an email address and stated that this was his preferred method of communication.[6]The Tribunal heard nothing from the Claimant. On 11 July 2011 the Employment Judge struck the claim out.[7]O n 15 July 2011 solicitors for the Claimant wrote to the Tribunal in the following terms. “We write to ask for a review of the Judgement which was promulgated on 11 July 2011 by Employment Judge Hill. The reason for the review [is] that the Judgement refers to a letter that was sent by the Tribunal on 27 June 2011 giving “the Claimant an opportunity to give written reasons [why] the claim should not be struck out”. We are informed by our client that he never received this letter and therefore, was unable to comply with the contents thereof.”[8]The Employment Judge dealt with the matter peremptorily. By letter dated 20 July the Tribunal replied on her behalf:
“Your application for a review has been refused because the Judge considers that there are no grounds for the decision to be reviewed under Rule 34(3) and/or there is no reasonable prospect of the decision being varied or revoked. Reasons:- The Claimant has told his Representative he did not get the warning letter. As it was sent by email to his correct email address at which the Claimant has received all other Tribunal documentation I do not accept the Claimant is telling the truth. He had responded to earlier correspondence sent via email and therefore it is clearly the correct email address.”
[9]The Appeal Tribunal invited the Employment Judge to amplify her reasons; in response she confirmed that the reasons were sufficiently stated. Statutory provisions[10]The power to strike out a claim for non-compliance with an order is contained in rule 18(7) of the Employment Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 ). In most circumstances notice must first be given under rule 19(1) informing the affected party of the order or judgment to be considered and giving him the opportunity to give reasons why the order or judgment should not be made. Such a notice may be sent by means of electronic communication: rule 61(1). It is taken to be received on the day of transmission unless the contrary is proved: rule 61(2)(b).[11]A judgment striking out a claim may be reviewed under rule 34 of the Employment Tribunal Rules of Procedure. The grounds for review are set out in rule 34. I need not set them out in this judgment.[12]Rules 35 and 36 deal with the procedure to be followed where there is an application for a review. The application must be made within 14 days (rule 35(1)). It will be considered first, without the need for a hearing, under rule 35(3); it will be refused if the Employment

Judge considers (rule 35(3)):

“that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.”
If the application is not filtered out under rule 35(3) a review is held in accordance with rule 36, upon which the decision may be confirmed varied or revoked. The appeal[13]The Claimant’s Notice of Appeal was prepared by counsel. I can summarise the grounds as follows. Firstly, it is argued that the Employment Judge has not considered the reason put forward by the Claimant properly: she has concluded that he was dishonest without giving him any opportunity to put forward evidence or argument in support of his contention. It is said that he had previously not received emails from the Tribunal, that ACAS had notified the Tribunal that he did not receive notification of the pre-hearing review, and that the Tribunal had had to re-send notice of the pre-hearing review. Secondly, it is argued that the Tribunal did not consider at all the proportionality of striking out, bearing in mind that the application to revoke the order was made very promptly. A broad assessment of the interests of justice was required: see Thind v Salvesen Logistics Limited [2010] UKEAT/0487/09/DA at paragraph 14.[14]Today the Claimant has appeared in person. He has relied on the grounds set out in his Notice of Appeal. He also produced a skeleton argument, but this was directed to the merits rather than to the questions I have to decide. In addressing me he mentioned the possibility that an email from the Tribunal might have been diverted automatically by his computer into a box for junk mail; but he confirmed that he did not himself receive and read the Tribunal’s letter dated 27 June.[15]On behalf of the Respondent Mr Martin Palmer submits that the Employment Judge was entitled to deal with the matter summarily. He says it was for the Claimant to prove that the email had not been received (see rule 61(2)(b) and T and D Transport (Portsmouth) Ltd v Limburn [1987] ICR 696); the Claimant’s solicitors did not provide any evidence to prove whether the email had been received; in the absence of such evidence the Employment Judge was entitled to conclude that the Claimant had deliberately chosen not to respond to the striking out warning. Conclusions[16]I have concluded that the Employment Judge’s decision on 20 July 2011 cannot stand. My reasons are as follows.[17]Rule 35(3) of the Employment Tribunal Rules of Procedure provides for preliminary consideration of applications for review. Many such applications can properly and fairly be dealt with summarily on paper: the paradigm case is an application for review following a full hearing, where the application does no more than challenge the findings and reasons given. Occasionally, however, such an application will be predicated upon an important issue of fact. This was such a case: the Claimant was saying that he did not receive the Tribunal’s letter dated 27 June 2011. Rule 35(3) is not the appropriate mechanism for deciding issues of fact.[18]The Employment Judge did not make her decision on 20 July on the basis that the Claimant’s solicitors had failed to provide evidence of non-receipt of the letter. The solicitor’s letter set out a negative; the only direct evidence of non-receipt could come from the Claimant; but his assertion of non-receipt, if accepted, would be evidence which could discharge the burden of proof.[19]Rather, the Employment Judge made her decision on the basis that, since the letter was sent by email to the usual address, and previous emails had been received, the Claimant was not telling the truth. But whether the Claimant was, or was not, telling the truth could not be established fairly without some enquiry. Even if it is to be assumed that the Tribunal sent the email on 27 June with the correct attachment to the correct address and received no error message in return (and, the Employment Judge not having amplified her reasons, it is unclear what enquiry she made about this), it does not necessarily follow that it was received, still less read: there may have been a fault in transmission, or with the Claimant’s mail provider, or even with his computer or the systems on his computer. Put shortly, the Claimant’s application could not be satisfactorily resolved under rule 35(3) on the material before the Employment Judge. She was not entitled, without further enquiry, to make a finding that he was not telling the truth.[20]It follows that this appeal must be allowed and the matter remitted. I will direct that a review take place. It is now plainly undesirable that it should take place before the same Employment Judge, since she has expressed the view that the Claimant is not telling the truth.[21]I would expect that the Tribunal itself would check its email system to ensure the correct attachment was sent to the correct address, and to see if there is any indication of emails not arriving or being re-sent, and would provide details to the parties.[22]I will direct that the Claimant file and serve at the Tribunal, by 21 days from the seal date of this order, a signed statement confirming, if it be the case, that he did not receive the letter dated 27 June, and setting out any other evidence he wishes to rely on in support of his application – for example if he is saying he did not get earlier emails and that they had to be re-sent, he should give details.[23]U pon review, the first question will be whether the email was received by the Claimant. If it was not received his application for a review would be very strong. If it was received, but for some reason not read or acted on, his application was not be so strong; but the Tribunal should still keep in mind the guidance given in Thind v Salvesen Logistics Limited at paragraph 14:
“… The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal's procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But that is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts.”
This case does not involve breach of an unless order; rather it involves breach of an order coupled with a failure to explain the breach when given an opportunity to do so. Nevertheless the striking out order was imposed for default in compliance with an earlier order; and broadly similar considerations apply.