Appeal No. UKEAT/0304/11/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 2011

Before
HIS HONOUR JUDGE PETER CLARK
SIR ALISTAIR GRAHAM KBE
MR R LYONS

PROFESSOR J RADFORD	APPELLANT

TEESIDE UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MS NAOMI LING
(of Counsel)
Bar Pro Bono Unit

	
For the Respondent	MR BEN COLLINS
(of Counsel)
Instructed by:
Martineau Solicitors
No 1 Colmore Square
Birmingham
B4 6AA

SUMMARY
PRACTICE AND PROCEDURE – Review

Review application dismissed by Employment Judge alone under Employment Tribunal rule 35(3).  Claimant’s representative misled Employment Tribunal and Claimant and prevented her from making, or having made on her behalf, a renewed adjournment application whilst she was un-contactable abroad (see Marsden).  Appeal allowed; remitted to fresh Employment Tribunal for review hearing.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This is an appeal by the Claimant, Professor Radford, before the Newcastle Employment Tribunal against the Judgment of Employment Judge Pitt, promulgated with Reasons on 1 April 2011 (the review decision) summarily rejecting her application for review by a full Tribunal chaired by that Employment Judge of their Judgment, following a hearing held on 24 January, promulgated with Reasons on 22 February 2011 (the substantive Judgment), dismissing her various claims brought against the Respondent, Teesside University.

Background
2.	The Claimant was employed by the Respondent as Professor in Criminology and Women’s Studies.  On 14 December 2009, she presented complaints of constructive unfair dismissal, age discrimination and sexual orientation discrimination.  The claims were resisted.

3.	The matter came on for substantive hearing on 24 January, listed for four days.  From 17 June 2010 the Claimant had been represented by Mr Lee Cuttle of the Legal Bureau on the instructions of her trade union.  His precise professional standing is unclear.  It seems that he took himself off the record without informing the Claimant, then on a holiday in Cuba booked in August 2010, shortly before the hearing fixed for 24 January.  Neither the Claimant nor Mr Cuttle attended that hearing.  The Respondent was present, ready to defend the claim, represented by Mr Collins.

4.	In the absence of the Claimant and her representative the Tribunal was invited to, and did, consider its options under ET rule 27(5).  They decided to dismiss the claims rather than to adjourn the hearing.  At paragraph 11 they said:

“11.	 In the circumstances the Tribunal concluded as follows: we know that as of 24 December and therefore on 11 January 2011 that the Claimant was aware that 28 January 2011 was listed for a final Hearing of the claim.  We presume she was aware of the postponement request.  The Tribunal have tried to contact the Claimant via her home telephone number this morning and there has been no answer to that call.  In the circumstances the Tribunal have concluded the most likely scenario is that she has gone on holiday to Cuba in the full knowledge that today’s date is set for a Hearing and not knowing whether the postponement would be granted or not.  We conclude that she was not entitled to assume she can go on holiday.”

5.	In a separate Judgment that day the Tribunal ordered the Legal Bureau to pay the Respondent’s costs in the sum of £52,386.35 by way of a wasted costs order.

6.	Now acting alone, the Claimant made her review application by a letter dated 6 March 2011.  Relying on the grounds listed at ET rule 34(3)(b)(c)(d) and (e) she gave this account.  On 25 August 2010 she had emailed Mr Cuttle stating that she had booked her holiday in Cuba from 10 January until 2 February 2011.  It appears from a transcript of a telephone message left by Mr Cuttle (which the Claimant says she did not receive while she was in Cuba, but upon her return to the UK on 2 February) that that email was “missed”.  On 24 December she spoke to Mr Cuttle on the phone, learning for the first time that the Tribunal hearing was listed for 24 January.  Her account of that conversation, in her review application, was as follows:

“He said that he had just heard that the case was now in Newcastle on January 24th having been moved from Thornaby (or vice versa).  I said that it couldn’t be because I was in Cuba, as he knew from me back in August.  He seemed put out at first and I think he might have sworn under his breath, but he quickly became professional again and his words to me were “Don’t worry, it will be all right.  I’ll get the date changed and be in touch”.
I asked him to e-mail me because I couldn’t hear him very well in the shop, but he repeated loudly that he would get the date changed and for me to have a good holiday and not to worry.”

7.	Mr Cuttle did apply for a postponement on that day.  On 4 January he was asked by the Tribunal for further information about the Claimant’s holiday booking.  He did not provide that information until 12 January.  By then the Claimant had left for Cuba.  The postponement application was then refused.  He did not succeed in conveying this development to the Claimant, whom he asked to return in a message left on her phone.  He then, unilaterally, withdrew from the case.

8.	In her review decision Reasons, the judge said at paragraph 6:

“6.	Under Rule 34(3)(c); although the decision was made in the absence of the claimant it was her decision not to be present.  The claimant relies on the fact she was of the opinion that her legal advisors were dealing with the matter.  In her correspondence she says that Mr Cuttle told her not to worry he would get the date changed and that she should have a good holiday. This is a clear indication that the Tribunal on 28th January [24 January] were correct in their assumption that the timing of the applications was critical and that the Legal Bureau deliberately failed to provide the Tribunal with the relevant information until after the Claimant had left for her holiday.  Whilst the Tribunal understand that the claimant was relying on her representatives it was still her decision to go on holiday and not attend the Hearing, I am not satisfied this is a sufficient explanation for her failure and (sic) postpone a 5 day hearing.  I take account here of the fact that on the day of the Hearing the Tribunal did not have before it an application to postpone; that having been dealt with prior to the Hearing; nor any explanation from the Claimant or her legal advisors as to her absence.”

9.	And at paragraph 8, in considering the interests of justice ground under rule 34(3)(e) the judge observed that the Claimant’s representative “clearly sought to mislead the Tribunal”.

The appeal
10.	In advancing the appeal Ms Ling submits that the facts of this case, as advanced by the Claimant in her review application, which Mr Collins accepts was the basis on which that application should initially be considered by the judge alone, are exceptional.  Her representative misled the Tribunal (see Newcastle Upon Tyne City Council v Marsden [2010] ICR 743).  He had assured her that he would get the hearing date changed and she left for her holiday confident that that would be the case.  He then withdrew, leaving her without representation in her absence and thus deprived her of the opportunity to renew her postponement application through him, on 24 January.  In these circumstances, it cannot be said that the review application did not fall at least within rule 35(3)(e) and could not be said that there was no reasonable prospect of the substantive Judgment being varied or revoked.

11.	Mr Collins accepts that the Employment Judge was required to accept the Claimant’s account at face value, otherwise a review hearing before the full Tribunal would be necessary.  However, he contends that the judge’s review decision fell within her wide discretion granted by rule 35(3).

12.	We prefer the submissions of Ms Ling.  Although at paragraph 6 the judge records the Claimant’s account of her telephone conversation with Mr Cuttle on 24 December, she does not appear to recognise the difference between that firm assurance by Mr Cuttle that the hearing would be postponed and the supposition made by the full Tribunal at paragraph 11 of their substantive decision, to which we have referred.

13.	It seems to us that had the judge had the advantage of considering the guidance given more generally by Underhill P in Marsden, not referred to in the Respondent’s letter of opposition to the review application, nor in the judge’s Reasons, she would inevitably have concluded that the review application required determination by the full Tribunal.

Disposal
14.	In these circumstances we shall allow this appeal.  Ms Ling urges us to exercise our powers under section 35(1) of the Employment Tribunals Act 1996 and effectively carry out the review and revoke the Tribunal’s substantive Judgment.  Mr Collins, on the other hand, submits that such a course would be inappropriate.  He ought to be given the opportunity to explore with the Claimant in cross-examination at a full review hearing the precise circumstances surrounding her understanding of the position during the relevant period, although he does not challenge her account as a matter of credibility.  We agree with Mr Collins.  However we think that the review hearing should be conducted by a fresh Tribunal appointed by the Regional Employment Judge.

15.	Accordingly the appeal is allowed and the Claimant’s review application is remitted for hearing by a fresh, full Employment Tribunal, other that which sat on 24 January this year.