Appeal No. UKEAT/0521/11/CEA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 20 January 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)

MS L RICHARDSON	APPELLANT

CANTERBURY COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS L RICHARDSON
(The Appellant in Person)	
For the Respondent
	MS V WEBB
(of Counsel)
Instructed by:
Eversheds LLP
Kett House
Station Road
Cambridge
CB1 2JY

SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal

A letter from the Employment Tribunal was capable of misinterpretation: it might (as the author intended) have ruled adversely to the Claimant as to waiving a deposit she had been ordered to pay, but it might not (as the Claimant appeared in contemporaneous correspondence to understand it).  When an Employment Judge struck out the claim for non-payment of the deposit he did so without apparent consideration of the contemporaneously expressed view of the Claimant, and ought to have taken into account her understanding of the position before ruling against a review of the strike out.  Case remitted.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	This is an appeal that seeks to appeal a refusal by a Judge to review a Judgment.

Background
2.	The background is this.  The Claimant was dismissed from her employment as a lecturer at Canterbury College.  That was for the allegation that she had deliberately forged a signature on a document.  She raised a number of matters in her application to the Employment Tribunal, some of which suggested that her actions had been misinterpreted or might have been the consequence of a disability from which she suffered.  Those matters were considered at a Pre‑Hearing Review on 24 March 2011.  The Judge at that review ordered that the Claimant pay a deposit of £200 in order to continue with the proceedings in accordance with rule 20 of the Employment Tribunal Rules.  He acknowledged that that sum was for her in her state a substantial sum of money, but he concluded that it was within her means should she be sufficiently determined to continue with the claim.  The deposit was to be paid by 4 May 2011.

3.	Pausing there, the obligation plainly was on the Claimant to pay the sum if she wanted to continue.  That point was emphasised by the notes that accompanied the order.  They provided for the possibility that the period of time might be extended by up to 14 days, provided that an application seeking such an indulgence was made within the period of three weeks following receipt of the order.  It then went on to say, again in clear terms: “If the deposit is not paid within the extended period of time, an Employment Judge shall strike out the claim […]”.  In response to that, the Claimant made two applications to the Tribunal.  The first, six days after receipt of the order, asked the Tribunal to consider allowing her as long a period as possible to pay the deposit; perhaps, she suggested, until September, because of the outstanding financial commitments she had to meet over the next few months.  The second application, four days later, said this: “Further to my email of 19 April 2011 could you please kindly consider waiving your deposit fee of £200”.

4.	The Employment Judge in refusing the request for a review set out all that history accurately.  The applications that had been made on 19 and 23 April were the subject of a letter to the Claimant of 27 April.  This letter read as follows:

“I refer to your letters dated 19th and 23rd April 2011, which have been placed on the file.
Employment Judge Wallis has directed me to write to you.
Please explain to the Claimant that the Deposit Order cannot be extended in the way she proposes.”

5.	It is signed on behalf of the Secretary of Employment Tribunals.  The Employment Judge took the view that that letter informed the Claimant that both applications had been refused.  It appears that it was on that basis, and the implication arising from that view that the Claimant understood that the applications had been refused or ought reasonably in the circumstances to have done so, that the review decision continued.  What happened was that the 21‑day period for payment expired on 4 May 2011.  The deposit was never paid, and the claim was struck out on 12 May.  The Claimant appealed against the requirement of £200 payment but did so out of time, and her appeal was rejected in this Tribunal.  She sought a review, within time, saying to the Employment Judge as follows:

“At the time of the Strike Out decision I had an application pending a decision.  I had requested an extension to the time limit regarding payment of the Deposit.  I then requested that the Court waiver [sic] the £200 Deposit on the grounds of increasing and unexpected hardship.
Having been told that the request for an extension had been denied, I then made consistent efforts to ascertain a decision as to whether the Court had waived the Deposit fee.
I had not been informed of the outcome of that request when the decision to apply for a Strike Out was made.  When I was told by telephone that this was the case, I offered to pay the £200 Deposit immediately, but this was refused.  […]
In the interest of justice I ask that the decision to Strike Out my claim be reviewed to allow me to pay the Deposit, should this be necessary, and to continue my claim please.”

6.	The Judge dealt with that application in the light of the history as he had recited it by saying this, in paragraphs 11 and 12 of his Judgment:

“11. The notes accompanying the deposit order were clear.  Unless the deposit was paid within 21 days, or an extension of time had been granted, the claim would be struck out.  The Claimant was aware before the expiry of the 21 days that her request for an extension of time had been refused.
12. I have concluded that there was no administrative error and no breach of justice in these circumstances.”
 
7.	It is axiomatic that the decision whether to grant a review or not is a discretion that the Employment Judge is at liberty to exercise, and that appellate courts should not interfere with the exercise of any such discretion unless the approach to it is wrong in law or unless the Judge, in coming to the conclusion he did, has left out of account something that ought to have been taken into account, or, conversely, taken into account something that he should not have done.  Here, the argument for the Claimant is encapsulated by Mr Recorder Luba QC on the sift, granting permission for this case to be heard, when he wrote:

“Before the specified date the Appellant made two separate applications: (a) for more time to pay and (b) for waiver of the fee.  The response was ‘explain to the Claimant that the deposit order cannot be extended in the way she proposes’.  The Appellant treated that as a response to her first application and was still waiting for a response to the second application when time expired and a strike-out took effect.  On review the Employment Judge appears to have held that the response covered both applications!”

The appeal
8.	Before me it is accepted that it would be a relevant consideration for the Judge to take into account that the Claimant did not understand that her request for a waiver had been rejected.  There would have to be a credible basis before the Employment Judge if he were to reach any such conclusion.  It must be assumed that he had in front of him the Employment Tribunal file, not least because he makes reference to some of the correspondence in his decision.  Part of that file includes an email sent on 4 May, the last date for payment of the deposit, in which the Claimant said that she had requested a waiving of her £200 fee, which was due in “now”:  “Please could you kindly advise me as to your decision?  I look forward to hearing from you.”  On 9 May she emailed again, asking whether there was an answer yet to her appeal against the £200 deposit.

9.	It was thus, or should have been, plain that she was asserting at the time that she had not understood the letter of 27 April as having disposed of that claim.  The letter of 27 April 2011 is arguably unclear, although in context it must be noted: first, that there was an order for payment by 4 May; secondly, that order had never been revoked, nor had the Claimant been told that it was; and thirdly, that for a letter to deal with the refusal of an extension may be said to imply that the order remains in force.  The letter itself referred to both applications, that to extend time and that to waive a fee, and so it is open to the conclusion that it would not have been reasonable for the Claimant to have interpreted the letter as giving any glimmer of hope to her, but it must also be appreciated that the letter might arguably be capable of the interpretation that the Claimant appears to have given it.  Whether she was entitled to do so reasonably would be an assessment to be made in the light of the considerations I have mentioned, the context as a whole, and the fact, which is not irrelevant, that she had been a lecturer, teaching, she tells me, psychology and health and social care, and has, for that purpose, a degree in psychology.  She might, therefore, if a Judge wished to come to this conclusion, be thought of as a person who, though not competent in law, is nonetheless capable of understanding some complex documents.

10.	The difficulty, however, is that the implication in the Judge’s decision is that the Claimant fully understood that the deposit had to be paid.  There is no indication in his decision that he appreciated that she took, or appeared to take, a different view, and that there was credible material to support it.  The decision to refuse her claim that the interests of justice required a view demanded, in my view, that he should have explored not simply whether she had been told, as he saw it, but whether she understood and whether, if she failed to understand and if she satisfied him of that, her failure was reasonable in the circumstances.  Plainly if an order is made, a litigant cannot normally be heard to say that they do not understand the order if the terms of it are perfectly clear and if it is unreasonable for them to understand it in the way they suggest, but in this particular case, having taken all the matters into account, it seems to me that it is at least open to the Judge to come to a conclusion that might be favourable to the Claimant.  I am satisfied that he exercised his discretion without considering what was on the material before him clear evidence that supported a case that she did not understand the communications as refusing her application to waive the fee, and that there might have been a proper basis for that understanding.  Accordingly, he might, had he appreciated that, have come to a different conclusion as to the application for a review.  Therefore I cannot say that the decision he reached was plainly and obviously right.  I am not in the position in this Tribunal to exercise the powers of this Tribunal to substitute its own decision.  I would not wish to do so in this case, because the Claimant makes reference to matters she says she was told by members of the Tribunal staff, and that, Ms Webb submits, and I agree, may require some investigation or exploration if it is to be dealt with properly.

Conclusion
11.	Despite, therefore, the careful way in which the Employment Judge dealt with the application for a review, to which, but for the point I have identified, I would pay tribute, this appeal has to be allowed, with the consequence that the matter is to be remitted to the Tribunal for the Judge to consider the question of whether to grant a review or not in the light of this Judgment and any further representations that either party may seek to put before him.