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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Compass Group UK and Ireland Ltd (t/a Scolarest Educational Foodservice) v. Wilson [2007] UKEAT 0203_07_2604 (26 April 2007) URL: http://www.bailii.org/uk/cases/UKEAT/2007/0203_07_2604.html Cite as: [2007] UKEAT 0203_07_2604, [2007] UKEAT 203_7_2604

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APPEARANCES

 

For the Appellant	Mr David Massarella (of Counsel) Instructed by: Messrs Richard Hutchinson & Co Solicitors 9 College Street Nottingham NG1 5AQ
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

Practice and Procedure – Striking out/dismissal

Appellant failed to put in ET3 in time and was debarred from defending. On review, the Chairman gave no reasons as to why the balance of prejudice and the interests of justice were "not served by granting the review."

Held: the decision was not Meek compliant. Following D & H Travel v Foster the purpose of the sanction was not punishment but to achieve the overriding objective of dealing with cases justly. In the absence of any indication of real prejudice to the Respondent and there being an arguable defence to the claim, the appeal would be allowed and the Appellant's ET3 accepted out of time.
 


HIS HONOUR JUDGE REID QC

1. This is an appeal from the decision of the Employment Tribunal held at Sheffield on 30 January 2007, the decision being dated 22 February and having being sent to the parties on 23 February. It was a decision on what appears to have been an oral application for review of a decision to reject the ET3 filed on behalf of the Respondent on the grounds that it was late and out of time.
2. The decision is a brief one and it consists largely of an exploration of the varying excuses given by the Human Resources Business Partner, as she styled herself, who represented the employer. That was in these terms: that the ET1 having been sent to the employer's registered office on 3 October (so that time for the ET3 expired until 31 October) did not in fact reach her until "the week commencing 20 October" owing to deficiencies in the internal mailing system of the employer. She then asserted that she wrote to the Tribunal on Saturday 28 October. A copy of that letter was produced to the Tribunal and the Tribunal noted that no such letter had ever been received by it. The letter was perhaps intended to be an application for an extension of time but it did not comply with the form required by rule 11(4) nor were copies of it sent to the employee as required by the rule or information as to its content. Then she says that she rang the Tribunal office on 1 November and the Tribunal office rang back on 2 November. There appears to have been no note of the contents of either of those communications prepared or produced by the Representative.
3. The Tribunal eventually received on 16 November an ET3 under cover of a letter dated 15 November. The ET3 bears the date of 1 November. The Tribunal had never received it prior to its receipt on 16 November. There was an assertion made by the Representative that she had sent the ET3 on 1 November. Reading between the lines of the judgment which is carefully framed, it is perfectly clear that the Chairman took the view that neither the letter of 28 October nor the version of the ET1 sent on 1 November had ever been sent. It is notable (a) that there appears to have been no covering letter with the ET3 allegedly sent on 1 November and (b) that on 6 November the representative wrote again to the Tribunal in which first of all she asserts that she received the ET1 only 8 days ago (which contrasts oddly with her suggestion that she had received it in the week commencing 20 October) and second it makes no mention at all that having already sent an ET3 to the Tribunal. I had no doubt that the Tribunal was finding, although in very polite terms, that the information being given to it by the Representative was untrue. When the ET3 did arrive it was rejected as being out of time. The letter was then written about it which was not in form an application for review. However the Tribunal caused a hearing called for 30 January which was to be a liability hearing including remedy if appropriate to be converted to an application for review.
4. The Tribunal retailed the unfortunate history of the employer's attempt to put in a response and then went on, correctly in my judgment, to note that the decision not to accept the response could be reviewed either under rule 34(3) paragraph (a) or paragraph (e). Paragraph (a) relates to an administrative error (which the Tribunal was satisfied was not the position in this case) and (e) the requirements of the interest of justice. The Tribunal dealt with the interests of justice point very briefly. It said this, "The Respondent had the ET1 served on its registered office, that exact address appears at the foot of the first correspondence from the Respondent and therefore the Respondent was properly served. [The Representative] says that she had the documents in the week commencing 20 October and therefore it was entirely possible for either a proper application for an extension of time to be requested within the 28 day period or for the ET3 to be lodged with the Tribunal. On that basis and after balancing the prejudice of both sides of a decision to refuse the application to review, the interests of justice are not served by granting the review and accordingly the application is rejected."
5. The ET3 was clearly a document which could have been, and looking at it, almost certainly, was prepared in a very short space of time. The substance of it is set out in 10 lines of manuscript and condescends to no detail whatsoever beyond in effect asserting that the investigation and disciplinary procedures were followed and that the dismissal on the grounds of misconduct was found. There is no explanation of the substantive sentence. "The grounds for dismissal are due to incorrect recording within the Nexus computer system of cash dispensed via the hanco ATM machine leading to an unexplained variance of £10,560." There is no assertion as to the employee's responsibilities or anything of that sort or indeed where or how the variance might have occurred. When I read that and given the material that it appeared to me that at that stage had been before the Tribunal, it seemed to me the somewhat one line nature of the decision made by the Tribunal might have been justifiable given the scanty material that had been put before it on behalf of the employer and more particularly the attempts to mislead the Tribunal in seeking the review. However I am told by counsel for the employer that there was in fact a fairly substantial quantity of documentation before the Tribunal from which it was apparent that there was a very real defence on the merits. Whether or not that defence would be successful at a full Tribunal hearing is of course another matter but on the face of it there is a good arguable defence.
6. I am satisfied that that material was before the Tribunal for three reasons. Firstly, I am told on instructions by counsel that those instructing him have spoken to the Representative who now and perhaps not surprisingly has left the employer and she says that that materials before the Tribunal. Secondly, a letter to the Employment Appeal Tribunal from the employee refers to the "evidence heard" at the Tribunal, and thirdly that the hearing at which the review decision was taken was originally listed as a liability and remedies hearing and it would therefore have been logical that the parties should have gathered together the material for the purpose of that hearing.
7. Given that there was that material before the Tribunal it seems to me that it is not possible to allow the decision of the Tribunal to stand, sympathetic though I am to the Chairman's disgust at the conduct of the employer and to the employee's wish to have this matter done and dusted as soon as possible.
8. The position so far as the law is concerned is that these rules are meant to be obeyed and clearly that a failure to give a full and frank explanation as to why the rules have not been obeyed is an important factor for the Tribunal when considering whether or not to allow an extension of time. But as observed by Elias P in D and H Travel v Foster [2006] ICR 1537 at paragraph 62 of the judgment, "Punishment clearly is not the purpose of these sanctions: see the observations of Chadwick LJ in Hussein v Birmingham City Council at paragraph 36 dealing with similar provisions in the CPR. As Chadwick LJ there pointed out ultimately all discretions should be exercised so as to achieve the overriding objective, which is to deal with cases justly. Moreover as the judgment of Mummery LJ in Kwik Save [1997] ICR 49 shows, an important consideration will be the extent of any prejudice to the parties. In this case there will be no prejudice to the Claimant in allowing Mr Henderson to take part by contrast there was obvious prejudice against the Respondents in allowing him that right." From that I derive that the object of the rule is not punishment, that one must look at the need to grant or refuse the review in the light of the interests of justice and that in looking at the interests of justice one must consider the prejudice to each of the parties.
9. This judgment, in its very brief form, gives no indication of what the respective balances of prejudice were one way or the other, but it is apparent to me looking at the totality of the matter that it could not have been appropriate in this case to refuse the employer the permission for an extension of time and to defend the case. On the one had absent an ET3 and absent the employer, the employee would in effect have a free run in circumstances where there is an arguable case on behalf of the employer. He would therefore be substantially benefited and the employer would be substantially prejudiced. On the other hand the delay which would affect the employee in obtaining a resolution of his claim would be comparatively small despite the ineptitude of the employer's Representative. By the time of this hearing in January the ET3 was in place and directions could at that stage have been given to get this matter to trial in a comparatively short space of time. In my judgment therefore the Tribunal erred firstly in not giving adequate reasons for it to be possible to ascertain why it reached the conclusion which it did and secondly in the conclusion that it did reach. As I view the facts that were before the Tribunal that decision in my judgment was not one that was properly open to it.
10. The question then is what is to be done to get this case back on track? I am not assisted by the fact that the employer took 40 of the 42 days that it was allowed by the rules before lodging its Notice of Appeal against the decision of the Tribunal that there is a hearing listed for next Monday, which in the light of the Tribunal's decision debarring the employer defending was to have been a hearing as to compensation or remedy. There is a difficultly of preserving that hearing because no notice of the hearing had been sent to the employer although the employer had become aware of it and therefore rule 14(4) had not been complied with. The notice had not been sent because of the order in effect debarring the employer from defending. I take the view that the best I can do bearing in mind the words of rule 14(4) is to allow the appeal and order that the hearing as to liability and remedy fixed for next Monday should be vacated but that in its place there should be a case management discussion. I would very much hope that the Tribunal can then find a hearing date for the substantive hearing as shortly as possible thereafter and equally I am confident that any whinging that may occur on the part of the employer as to how much time they need to prepare will receive the extremely short shrift that it deserves. The employer has dragged its heels so far in this matter and if a hearing date is fixed that requires a large team to work day and night in order to be ready for that hearing, so be it.
11. I will therefore, although sympathising with the Chairman's view, allow this appeal and make the order which I have indicated.