Clark v H2o Water Services Ltd (Practice and Procedure : Review) [2012] UKEAT 0149_12_2008

EAT
Clark v H2o Water Services Ltd (Practice and Procedure : Review)
[2012] UKEAT 0149_12_2008 · 2012-08-20
[1]This is an appeal by Mr Jason Clark (“the Claimant”) against a judgment of the Employment Tribunal (Employment Judge Hewitt sitting alone) dated 16 September 2011. By this judgment the Employment Judge refused to review an earlier judgment of the Tribunal dated 8 March 2011. The effect of the earlier judgment was to hold that the Claimant’s unfair dismissal claim against H20 Water Services Limited (“the Respondent”) had been presented out of time; that it had been reasonably practicable to present it in time; and accordingly that the Tribunal had no jurisdiction to determine the complaint. The procedural background[2]The Claimant was employed by the Respondent as a plumber and surveyor from 16 August 1999 until his dismissal on 13 August 2010. He wished to bring a claim of unfair dismissal. The last date for presentation of such a claim was Friday 12 November 2010.[3]The Claimant instructed the Oldham Law Centre – a charity supported by the local authority. Mr Paul Johnson, a solicitor, acted for him. The Law Centre’s address on its headed paper was “First Floor, Archway House, Bridge Street, Oldham, OL1 1ED”. The Law Centre continued to represent the Claimant until after the lodging of this appeal; but in March this year it had to close down. At this appeal he has represented himself.[4]The Tribunal has only received and acknowledged one claim form in this case. It was sent by fax at 07.26 on Monday 15 November. It had been prepared on the Claimant’s behalf by Mr Johnson. It named Mr Johnson as the Claimant’s representative, giving the address on the Centre’s headed notepaper except that it said “2 nd floor” instead of “First Floor”.[5]A claim form sent at this time was outside the 3 month period generally allowed for the presentation of a claim of unfair dismissal. However, Mr Johnson sought to say that it was not reasonably practicable to bring the claim within the 3 month time limit. He said:(1) He had been instructed by the Claimant on 2 November. He had diarised the last day for presentation of the claim as Friday 12 November.(2) He usually faxed claim forms to the Manchester Tribunal; but on this occasion he prepared the form while working away from the office and posted it himself by first class post in Birmingham on 5 November.(3) He was extremely busy the following week. He went into the office on Saturday 13 November to catch up. He saw the entry in the diary for 12 November; noted that no acknowledgment had been sent by the Tribunal; and as a precautionary measure caused a letter to be faxed to the Tribunal with another copy on Monday 15 November before business opened. The letter explained the position, saying that if the original claim form had been received it should be acknowledged in the usual way.[6]On this basis, Mr Johnson sought to argue on the Claimant’s behalf that it was not reasonably practicable to present the claim in time, given that the claim had been lost in the post – see Consignia v Healy [2002] IRLR 624 at para 32(5). On the Respondent’s behalf, however, it was said that it was reasonably practicable to present the claim in time, because Mr Johnson should have checked in time to see if there was an acknowledgment; and if there was not have lodged another copy in time or at least contacted the Tribunal to check that the claim form had arrived – see Capital Foods Retail v Corrigan [1993] IRLR 430 at para 6.[7]On 17 December 2010 the Tribunal issued a notice of pre-hearing review fixing a hearing for Thursday 3 March 2011 so that the issue could be determined. The notice was sent to Mr Johnson, giving the correct address for the Law Centre, although no floor number was given. The notice was also sent to, and received by, the Respondent’s solicitors.[8]In subsequent correspondence the Respondent’s solicitors referred to this notice, though not to the date of the hearing. Their letter dated 19 January 2011 expressly referred to the “Notice of Pre-Hearing Review dated 17 December 2010”. Mr Johnson’s reply referred to “the issue to be considered at the pre hearing review”. The Respondent’s solicitors sent a bundle on 22 February “for use at the Pre-hearing review”.[9]On 3 March, however, Mr Johnson did not attend. He was in fact in court elsewhere all day. The issue was determined in his absence. There was, as the Tribunal said, no evidence before it by which it could satisfy itself that it was not reasonably practicable for the claim to be presented in time. So it was dismissed. The written judgment went out on 6 March.[10]Attempts had been made to contact Mr Johnson during the day. By the following day he knew that the case had been lost in his absence. He wrote a letter dated 4 March which the Tribunal treated as an application for a review. He said:(1) There was no notice of the PHR on file and no entry in the Law Centre diary against any date.(2) If a notice had been received, the procedure was for it to be entered in the diary for the date in question and for entries to be made on earlier dates to prompt preparation.(3) He accepted that he had received and sent correspondence referring to a pre-hearing review. He said, however, that there was no reference to a date in the correspondence and he had not appreciated that the Law Centre had not received a notice of hearing and that it had not been diarised in the usual way.[11]The review hearing eventually took place on 12 September 2011. The Tribunal had said that if the judgment on 3 March was revoked the hearing on time issues would follow there and then. Mr Johnson attended on behalf of the Claimant. He had prepared for the hearing by producing a witness statement and skeleton argument which dealt with the circumstances in which the original claim form had been lodged in November 2010. He did not, however, deal with the circumstances in which he failed to attend the pre-hearing review in March. The only material from him concerning this question was in his letter dated 4 March, which I have summarised.[12]A t the hearing Mr Johnson gave evidence. I am told by Mr Ben Williams, who appeared on that occasion for the Respondent as he does today, that the Employment Judge questioned Mr Johnson carefully about the layout of the Law Centre’s premises and about the manner in which papers (such as the PHR notice) would be received and diarised. The Tribunal’s reasons[13]The Employment Judge referred to rule 61(2) of the Employment Tribunal Rules of Procedure by virtue of which a notice or document sent by post is taken to be received by the party to whom it is addressed.[14]The Employment

Judge said:

“7. The Notice of Hearing in relation to the Pre-Hearing Review was sent to the parties’ representatives on 17 December 2010. The notice to the claimant’s representative was correctly addressed and was sent to the same address as subsequent correspondence which the claimant’s representative does not dispute as having been received. The claimant’s representative has not proved to the contrary as would be required by Rule 61(2). Even had the Tribunal been so satisfied, page 27 of the bundle of documents (a letter from the respondent’s solicitors to the claimant’s representative dated 19 January 2011) would in any event had been the claimant’s downfall as the first sentence of that letter reads:- ‘We write further to the above mentioned matter and to the Employment Tribunal’s notice of Pre-Hearing Review dated 17 December 2010.’ The letter is addressed to the claimant’s representative at the address that has been used in other correspondence and is marked for the personal attention of Mr Johnson. It has not been suggested that letter was not received. The letter clearly reminds the claimant that a Pre-Hearing Review date had been fixed. 8. It is a matter of record that neither the claimant nor his representative attended the Pre-hearing Review on 3 March but, having regard to the Tribunal’s findings in (7) above, that the Tribunal is not persuaded that the interests of justice require the Judgment made on 3 March 2011 to be either varied or revoked. Accordingly, in accordance with Rule 36(3) of the Regulations, the Tribunal hereby confirms the judgment made on 3 March 2011, namely that the complaint herein has been presented outside the time limits provided by the relevant legislation, that there is no evidence available to the Tribunal to satisfy itself that it was not reasonably practicable for the complaint to have been presented in time and that the Tribunal thereby has no jurisdiction to determine the complaint which is accordingly dismissed.”
Submissions[15]Although the Claimant has represented himself, he has had a starting point in the Notice of Appeal which was drafted by Mr Johnson; and also in Mr Johnson’s skeleton argument for the hearing in September, which dealt with the underlying time point concerning the lodging of the claim form.[16]As regards the review, Mr Johnson put the point in the following way:
“7.1 The Employment Judge wrongly applied the provisions of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which provide that: where a notice or document has been given or sent, it shall be taken to have been received, unless the contrary is proved (Rule 61(2)). The evidence before the tribunal (which was not disputed by the respondent) was that the notice of the hearing of 3 rd March 2011 (a Pre-Hearing Review) had not been received. The tribunal erred in going further than the rule and considering not just whether the notice was received, but whether, even though it was not received, the claimant or his representative should have done something to find out the date of the hearing of the PHR. 7.3 The judgment of the 3 rd March 2011 was made in the absence of the claimant and his representative because they had not received notice of the hearing and were unaware that it had taken place until after it was concluded.”
[17]As regards the underlying time point, Mr Johnson argued it was not reasonably practicable to present the claim in time, given that the claim had been lost in the post – see Consignia v Healy . He argued that Capital Foods Retail v Corrigan is distinguishable on the facts: in that case an acknowledgment from the tribunal would have been expected many weeks before the expiry of the deadline, so a checking system should have been in place; in this case, he said, it was foreseeable that an acknowledgment might not be received until after the expiry of the deadline.[18]On behalf of the Respondent Mr Williams responds in the following way.[19]As regards the review, he says that, contrary to the assertion in the Notice of Appeal, he did dispute that the notice had not been received. It was his submission that the notice was received but incorrectly diarised. He refers to his skeleton argument for the review, which contains this submission. He submits that the Employment Judge was entitled to reach the conclusion that the notice of hearing was received; and if it was received he was entitled to refuse the application for a review.[20]A s regards the underlying time point, he says that Capital Foods Retail v Corrigan is not truly distinguishable; the Claimant’s representative should have checked that the claim form arrived in time; he was negligent in this failure; and on established principles his negligence passes to the Claimant. Discussion and conclusions The application for a review[21]The Tribunal’s power to review its earlier judgment derived from rule 34 of the Employment Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 . Under rule 34(3) the grounds upon which a review may take place include:
“(b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party; (e) the interests of justice require such a review.”
[22]I have no doubt, having regard to Mr Williams’ skeleton argument, that there was an issue at the review as to whether the notice of pre-hearing review had been received.[23]This is why the Employment Judge referred to rule 61(2) of the Rules of Procedure. This provides, where service is by post as permitted by rule 61(1):
“(2) Where a notice or document has been given or sent in accordance with paragraph (1), that notice or document shall, unless the contrary is proved, be taken to have been received by the party to whom it is addressed-- (a) in the case of a notice or document given or sent by post, on the day on which the notice or document would be delivered in the ordinary course of post;”
[24]The address to be used was the address specified in the claim form: see rule 61(4)(h)(i). In this case the Tribunal did use the address in the claim form. It was sufficient to use the postal address; Mr Johnson at no point suggested the contrary, and I am satisfied that the floor number was, in the circumstances of this case, immaterial.[25]It was therefore for the Claimant through Mr Johnson to establish that the document was not delivered in the ordinary course of post. The Employment Judge determined that question against the Claimant.[26]I can see no error of law in the Employment Judge’s determination. It was, as it seems to me, a pure question of fact for him to decide. In practical terms there were two choices: either the notice of pre-hearing review did not arrive; or it arrived and was not properly opened, filed and diarised. It does not seem that Mr Johnson was personally responsible for filing and diarising the notice: his letter dated 4 March shows that he expected someone else to do that job. The Employment Judge was not, therefore, dealing with a case where he had seen and heard the witness whose responsibility it would have been to open the notice of pre-hearing review, file it and diarise it. He was entitled to hold that the burden of proof had not been discharged. Accordingly the ground in rule 34(3)(b) was not open to the Claimant.[27]I turn next to the ground in rule 34(3))(c). It is true, of course, that the decision in March was made in the absence of a party. But rule 34(3)(c) does not mean that a party is entitled to a review merely by failing to attend the hearing. The Employment Judge correctly considered that it was necessary to consider the interests of justice more generally. This accords with the overriding objective applicable to proceedings in the Employment Tribunal: see reg. 3 of the 2004 Regulations.[28]T he position is akin to the position under the Civil Procedure Rules (“the CPR”): see rule 39.3(5). A litigant who fails to attend a civil trial is not entitled to a further hearing. He will be expected to show that he: - “(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial.”[29]There is no similar provision in the Employment Tribunal Rules of Procedure: rule 35.3(5) of the CPR is accordingly not a compulsory guide to the Tribunal’s consideration of the interests of justice. But the factors contained within it are helpful ones for Employment Judges to keep in mind.[30]In this case it is plain that the Employment Judge did not consider that there was a good reason for not attending the hearing. He declined to accept that the notice of pre-hearing review had not been received; he took into account references to it in the correspondence, which should have alerted the recipient to the impending hearing – including correspondence about the bundle for the hearing. He was not persuaded that the interests of justice required the judgment to be reviewed.

(e) Reasonable practicability

[31]Since the Employment Judge found that there were no sufficient grounds for reviewing the judgment he did not go on to decide whether it was reasonably practicable for the Claimant to have presented the claim in time. This was the question posed by section 111(2) of the Employment Rights Act 1996 which provides: – “(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal--(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[32]If the Employment Judge had considered this issue he would first have had to decide whether to accept Mr Johnson’s evidence about the sending of the claim form on 5 November. Assuming he had accepted that evidence then - given that the posted claim form had not reached the Tribunal - the Employment Judge would have had to decide whether it was reasonably practicable to present the claim within the 3 month period.[33]In Capital Foods Retail v Corrigan the Appeal Tribunal held that the mere fact that a claim sent by post had not been received was insufficient by itself to satisfy the test. In that case the application form had been sent by solicitors 5 weeks before the expiry of the deadline. It was not received by the Tribunal. The solicitors therefore had no acknowledgment from the Tribunal; they made no check of any kind until after the deadline expired. The Appeal Tribunal held that it was reasonably practicable to present the claim in time. Lord Coulsfield said (paragraph 6):
“In the present case, it can be accepted that, initially, there was an impediment to the presentation of the complaint, namely, the unexplained failure of the letter dated 25 March 1992 to reach the Central Office of Industrial Tribunals. The existence, however, of that impediment is not sufficient to satisfy the test of s.67(2) unless the applicant, or her advisers, have taken all the steps they should reasonably have taken, in the circumstances, to see that the application was timeously presented. In the present case, that seems to us to depend upon whether the applicant's solicitors took all the steps which reasonably should have been taken to confirm that the application had been duly received. In the ordinary course, an application to the Central Office of Industrial Tribunals would be acknowledged immediately and, indeed, it might be anticipated that the employers' answers to the application would be available within a period of less than five weeks from the presentation of the application. It seems to us to be a matter of ordinary and prudent practice to employ some system of checking that replies which might reasonably be expected within a certain period have in fact been received, and that the conduct of business is taking a normal course.”
[34]Mr Johnson seeks to distinguish Capital Foods in the following way. In that case the solicitors could expect to have received an acknowledgment long before the deadline. There was ample time to make a check. In this case the claim form was sent close to the deadline. In his experience it could take a few days to receive an acknowledgment from the Tribunal. So it was reasonable not to have checked.[35]In my judgment this is no answer for a practising solicitor who can and should diarise the date by which the claim form is due. If time is short a solicitor can of course send the claim form more or less instantly by fax or email, in which case he will have some more or less instant form of acknowledgment. In this way he can avoid the use of the post altogether. But if he chooses to send the claim form by post, he should have a check in place that it has been received by the day of the deadline. If he is sending the claim form by post so close to the deadline that an acknowledgment may not have been received in the ordinary course, then he will need to make a more careful check with the Tribunal – or send the claim form again, belt and braces, by fax or email.[36]In this case Mr Johnson had a diary entry for 12 November: the problem was that he did not notice it until 13 November. If he had noticed the matter on or before the date in his diary he could and would have sent the claim form by fax as a precautionary measure – as he did when he noticed the entry in his diary.[37]I can see no answer to the proposition that it was reasonably practicable to present the claim form within 3 months. The Claimant can be in no better position than his solicitor: see, for example, Walls Meat Co v Khan [1978] IRLR 499 at 502, Marks and Spencer plc v Williams-Ryan [2005] IRLR 562 at paragraph 31. Accordingly even if the application for review had been successful in my judgment Mr Johnson’s underlying argument would have failed.[38]F or these reasons the appeal will be dismissed.