Appeal No.UKEAT/0687/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 September 2004

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR M L WOODLEY	APPELLANT

R A GRIBBLE LTD
(IN LIQUIDATION)	RESPONDENT

Transcript of Proceedings

JUDGMENT

Final

	APPEARANCES

		

SUMMARY

Tribunal Procedure

An Employment Tribunal Chairman has no power to review or reverse a decision by another Tribunal Chairman who had decided that a Notice of Appearance should not be accepted out
of time.

HIS HONOUR JUDGE McMULLEN QC
1	This case concerns Employment Tribunal procedure, when an Employment Tribunal Chairman revokes an Order of a previous Chairman, who decided that a Notice of Appearance should not be accepted out of time and ordered that the case be heard as an undefended claim.   I will refer to the parties as Applicant and Respondent.  

Introduction
2	By an Originating Application, presented on 11 May 2004, the Applicant made claims against the Respondent relating to unfair dismissal and unlawful deductions from pay.  At that time he was unrepresented, but subsequently wrote on 4 June 2004 indicating that he would be represented by Mr Victor Tonkin.  On 14 June 2004 the Regional Secretary of the Tribunals at Exeter acknowledged this letter and said as follows:
“A copy has been made to the respondent via this exchange in correspondence for information only, no appearance having been entered.  The case will proceed to be listed for hearing as an undefended claim.  The hearing notice will also be sent to the respondent for information ONLY.
Formal notice of hearing will follow in due course”
It follows that the requirement of Rule 3(1) for a Respondent within 21 days of receiving a copy of the Originating Application to enter an appearance had not been met.  Notice of hearing fixed for 12 August 2004 was duly sent on 23 June 2004.  

3	On 16 July 2004, following a further communication from the Tribunal, the Respondent wrote as follows:
“We would apologise for the delay in submitting information by the required date.  Unfortunately we were not fully aware of the critical nature of the dates.  However we are able to produce details below on the 12th August 2004.”

Attached to this was a Notice of Appearance, taking issue with the matters in the Originating Application.  

4	In response on 21 July 2004 the Regional Secretary wrote:
“Thank you for your letter dated 16 July 2004 which has been referred to Mr J G Hollow, a Chairman of the Employment Tribunals.
Your Notice of Appearance was received out of time.  The Chairman has considered the reasons for this and has directed me to inform you that he does not validate the Notice.  In so far as there is one, the explanation for the substantial delay is unsatisfactory, even though the Notice of Appearance raises an arguable defence.”

5	For administrative reasons, the hearing fixed for August could not go ahead and was re-fixed for 24 September 2004.  

6	On 20 August 2004 a further letter was sent by the Regional Secretary saying:
“Thank you for your Notice of Appearance dated 17 August 2004 which has been referred to Mr B E Walton, a Chairman of the Employment Tribunals. 
Your Notice of Appearance was received out of time.  The Chairman has considered the reasons for this and has extended the time appointed by the rules so that the Notice of Appearance is now accepted.
……..
You may now defend the claim.”

7	The reference to the 17 August letter was to a letter from Total Accounting Ltd, in which it was said that the Respondent was now represented by an accountant who said:
“I believe that the problem may be due to filing deadlines and such like being missed.  My client is a builder, and has limited knowledge of the applicable legal and procedural affairs of a tribunal, and the company is unable at present to afford the funds to instruct a lawyer to deal with this matter.  In addition, the Director who was dealing with this matter resigned on 16th July, and so Mr R A Gribble has been effectively ‘thrown in at the deep end’.
Accordingly, and I apologise that it is in the 11th hour, I have offered to represent the company on a pro-bono basis ……”

8	In response, a letter was written on behalf of the Applicant on 23 August 2004 asking the Chairman “respectfully ….. to reconsider the matter” and respectfully contending that he was appealing the Decision.  The reasons for this were that the Chairman had given no reasons for the change of decision, and that the reasons put forward by the Respondent for missing the deadline were unsatisfactory and were unchanged.  

9	On 31 August 2004 the Secretary replied saying as follows:
“Thank you for your letter dated 23 August 2004 which has been referred to a Chairman of the Employment Tribunal, Mr C G Toomer.  
The Chairman’s view is that the Rules of Procedure do not permit a Chairman to review such a direction once made.  In those circumstances, the proper course would appear to be an appeal to the Employment Appeal Tribunal. ……”

10	On 23 August 2004 the Applicant was sent a notice of a creditors' meeting, due to be held on 17 September 2000, to put the company into liquidation.   

EAT Directions
11	Because of the imminence of the hearing, I gave directions indicating the parties might prefer to have a hearing based on written representations.  Both agreed.  On 20 September 2004 I made an order allowing the appeal and reserving reasons.  These are the reasons.  

Conclusions
12	In my judgment, the Chairman, Mr Walton, had no power to rescind the decision made by Mr Hollow.  For reasons which I explained in my judgment, in Safeway Stores Ltd -v- Royer UKEAT/0520/04 25 August 2004, a Chairman alone cannot review a Decision: see Rule 15(8).  A Chairman or a Tribunal cannot review an order, since only a Decision may be reviewed and an interlocutory order is not a Decision.  Whatever the nature of Mr Hollow’s determination not to validate the Notice of Appearance, Mr Walton had no power to reverse it.  

13	In any event, he gave no reasons for doing so.  He appears to have considered the same Notice of Appearance as was before Mr Hollow, for I have not seen any other.  Mr Hollow gave reasons for rejecting the Respondent’s application to present a Notice of Appearance out of time.  There was no appeal, and thus it was binding on the parties in this case.  I have not seen any new material put before Mr Walton and so it is not open to a Chairman to reverse the decision of a previous Chairman upon the same material.  Nor, in my view, is it possible to reverse it at all, other than by the mechanism of an appeal or a review, or an application to vary or revoke, made within the relevant timescale.  I accept in full the written representations of the Applicant making a basic point about unfairness in having decisions changed, and those submissions are correct, when the Rules are applied to these circumstances.

14	The Order of Mr Walton is set aside and the Order of Mr Hollow is restored.  The appeal is allowed.