Appeal No. EAT/1237/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 December 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MR P A L PARKER CBE

MR J WROE	APPELLANT

LONDON BOROUGH OF ISLINGTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr W.Sullivan
UNISON	
For the Respondent	Miss L Seymour
(of Counsel)	

HIS HONOUR JUDGE PETER CLARK

1.	We begin with a history of this matter.   The Appellant, Mr Wroe was employed by the Respondent Council as a Social Worker from April 1978 until his summary dismissal on 23rd January 1997.  Following that dismissal he presented a complaint of unfair dismissal, breach of contract and unpaid wages to the London North Employment Tribunal on 22nd April 1997, naming as representative, Unison (yet to be arranged) of Islington N1, giving a telephone number and a reference c/o Tony Madden, who we understand was at that time the Unison branch secretary.  The claim is resisted by a Notice of Appearance lodged on 22nd May 1997.  On the 2nd July 1997 the Tribunal issued an order directing the Appellant to furnish further and better particulars of his originating application on or before 17th July 1997, directed to his claim for breach of contract, failing which the whole or part of the originating application may be struck out.  That order was made following a request for particulars in relation to the breach of contract claim made by the Respondent by a letter dated 30th June 1997.  The order of the 2nd July  was sent to Unison in Islington, London N1.  It was returned by the Post Office undelivered on 9th July 1997.  A member of the Tribunal staff contacted both the Appellant and Mr Madden to obtain the correct address for Unison.  Thereafter, on 25th July 1997 the Tribunal made a second order requiring the Appellant to give further and better particulars of his breach of contract claim, this time by 11th August 1997.  Again, that order gave the standard warning that failure to comply with the order may lead to the whole or part of the originating application being struck out at or before the hearing.  This time the order was addressed to Tony Madden at the address for Unison’s Islington office which was correct save for the postcode.  However the package was not returned and we presume, in the absence of evidence to the contrary, that it was delivered to the Union’s office.  No response was received from the Appellant’s Trade Union.  Accordingly, on 14th August 1997, the Tribunal wrote again to Mr Madden pointing out that the time limit for compliance with the 25th July order had passed and inviting him to show cause in writing why the originating application should not be struck out (the Rule 4(7) letter).  He was given 7 days to reply.  He never did.  

2.	In September the Council held an internal appeal against the decision to dismiss the Appellant.  It appears that by then the Appellant was suffering from ill health and felt unable to attend the appeal hearing.  It nevertheless went ahead and he was represented by Mr Madden.  The appeal was dismissed.  Mr Wroe states that the spoke to Mr Madden after the appeal hearing and made it clear that he wished to pursue his Tribunal application.  Mr Madden told him that he would pass the matter over to the Regional Officer, Mr Sullivan.  Meanwhile, nothing having been heard by the Tribunal in response to the Rule 4(7) letter, the matter was put before a Chairman, Ms Jessica Hill, who by a decision with extended reasons promulgated on 17th December 1997 ordered that the originating application be struck out under Rule 4(7) (“The Strike Out Order”).  From about October 1997 the Appellant had been living an itinerant lifestyle, living in a camper van, he had no fixed address.  On 14th January 1998, (the letter is misdated 1997) the Appellant wrote to the Tribunal explaining his circumstances; he had no settled address, he had been unable to attend the internal appeal hearing in September 1997 through ill health; that Mr Madden of Unison had handed over his papers to Mr Sullivan at the Union’s North London office, giving a telephone number, and that he intended to pursue this claim.  He said he would contact the Tribunal again in mid-February to as he put it, “make arrangements regarding the appropriate way forward” and to contact Mr Sullivan regarding further Unison representation and arrange an address for service.  In fact, we accept, the papers were never forwarded by Mr Madden to Mr Sullivan, who appears before us today.

3.	On 12th February 1998 the Employment Tribunal sent a letter to the Appellant’s former address informing him that his letter of 14th January had been treated as an application for review, which was refused as such application was out of time, (the first review decision).  It appears that the Appellant did not receive that letter.  He had left his former address by that time.  When the Appellant next contacted the Tribunal by telephone in about April 1998, he was informed that his claim had been struck out in December 1997 and told of the review decision made on 12th February .  

4.	On 16th July 1998 the Appellant wrote to the Tribunal seeking to have his claim reinstated, setting out the history from his perspective.  He then refers to his new Unison contact as Mr Wilf Sutton, not Sullivan, but nothing turns on that misdescription.  That letter was also treated as an application for review.  By a letter dated 10th August 1998, the Chairman directed that the original application for review having been refused in January (in fact February) 1998 as being out of time, she was not prepared to extend the time limit to allow his letter of 16th July to be considered as a request for review.  Against that decision (the second review decision) he appealed to the Employment Appeal Tribunal by a notice dated 10th September 1998, which was received on 15th September.  That notice was received within time under the Employment Appeals Tribunal rules, so far as the second review decision was concerned.

5.	The appeal was listed for a preliminary hearing before a division presided over by Mr Justice Charles on 17th February 1999, on that occasion the Appellant was represented by Mr Andrew Clarke QC under the ELAAS pro bono scheme.  Mr Clarke took two points in the appeal against the second review decision:

i)	that to strike out the whole of the originating application when the order for particulars related only to a part of the claim, that of breach of contract, was a draconian step which fell outside the proper exercise of the Chairman’s discretion and 
ii)	that the Appellant should have been heard on the review applications as to his assertions that he had not received information from the Employment Tribunal

6.	It will be apparent that the first point is really directed to the original strike out decision made on the 17th December 1997.  The Notice of Appeal was not lodged until 15th September 1998, well out of time for appealing against the strike out order.  The Employment Appeals Tribunal allowed the case to proceed to this full hearing on both points.  Further and contrary to the established practise in this Employment Appeal Tribunal, Mr Justice Charles’ Tribunal granted leave to Mr Wroe to appeal against the strike out order, out of time.  It is well established that on an application for leave to appeal out of time the Respondent must always be given an opportunity to be heard or make written representations.  That did not happen in this case at the ex parte preliminary hearing.  However, having granted the Appellant leave to appeal out of time against the strike out order the Employment Appeal Tribunal went on to grant liberty to the Respondent to apply to discharge the order giving leave to appeal out of time.  The Respondent duly made that application, which is before us for determination today.

7.	Finally, further consequential directions were made which has resulted in our being provided with further information for the purpose of this hearing which was not before the division sitting at the preliminary hearing.  In these circumstances it is not altogether easy to decide how best to deal with the issues raised before us.  Both representatives agree that the sensible way to proceed is by reference to each of the three Employment Tribunal decisions in turn.
i)	the strike out order of 17th December 1997
a)	Should the Employment Appeal Tribunal order granting the Appellant leave to appeal against the strike out order out of time be discharged on the Respondent’s application?  In our judgement the Respondent is entitled to have that order discharged as of right.  It ought not to have been made in the absence of the Respondent.  Should we grant the Appellant an extension of time for appealing against the strike out order?  Applying the guidance of Mummery J in United Arab Emirates –v- Abdelghafar (1995) ICR 65, we can see no grounds for taking the exceptional course of extending time in this case.  As Ms Seymour points out, on the Appellant’s case, he was made aware of the strike out order when he telephoned the Employment Tribunal in April 1998.  He did not then lodge a Notice of Appeal until 15th September 1998.  The fact that he applied to the Tribunal for a review in the interim is no excuse for his not entering a Notice of Appeal to the Employment Appeal Tribunal.  Accordingly, we shall dismiss that application.

b)	Even had we extended time we should not have allowed an appeal against the strike out order on its merits.  The point taken on behalf of the Appellant today by Mr Sullivan, echoing that taken by Mr Clarke QC at the preliminary hearing, is that to strike out the whole of the originating application is too draconian and a wrong exercise of discretion where the order not complied with was limited to an order for further and better particulars at the breach of contract claim only.  It seems to us that it remains open to an Employment Tribunal, as was the case before 1993 rule change, to dismiss the whole of the claim for non-compliance with an order.  Further it is no answer that the failure to comply lay with the Appellant’s representative and not with him in person.  The two are indivisible for this purpose.  In these circumstances it is neither necessary nor desirable for us to seek to apportion blame between the Appellant and Mr Madden for the non-compliance, particularly in circumstances where we have not heard from Mr Madden.

ii)	The first review decision of 12th February 1998.
We have questioned whether the Appellant’s letter of 14th January 1998 could properly be regarded as an application for review, however, it seems to us that it could be treated as such by the Chairman, who was aware of the strike out order but unaware that the Appellant had not had personal notice of it.  In any event no appeal against that order is made.  If there were such an appeal we would not extend time for appealing for the reasons given under (1)(a) above.  The Appellant was informed of the first review decision at the same time he was told of the strike out order by a member of the Tribunal staff to whom he spoke on the telephone in April 1998.

iii)	The second review decision of 10th August 1998.
Although the appeal against that decision was in time, the application for review itself was out of time under Rule 10 of the Employment Tribunal’s rules.  We cannot say that the Chairman’s refusal to extend time under Rule 15 of those rules was a wrong exercise of discretion.  In any event, it is not clear to us on what basis a review could have succeeded.  There had been proper service under Rule 20 so that Rule 11(1)(b) did not apply.  Did the interests of Justice require a review under Rule 11(1)(e)?  It seems to us that it could not, where the reason for default and hence the strike out order in respect of which the review was sought, lay with the Appellant or his representative.  In these circumstances we must dismiss this appeal.