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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> American E-Z Self Storage Ltd v Prince [2008] UKEAT 0539_07_0205 (2 May 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0539_07_0205.html Cite as: [2008] UKEAT 0539_07_0205, [2008] UKEAT 539_7_205 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE REID QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Transcript of Proceedings
For the Appellant | MR D E GRANT (of Counsel) Instructed by: Messrs Hammonds LLP Solicitors Trinity Court 16 Dalton Street Manchester M60 8HS |
For the Respondent | MR O GOODMAN (Representative) |
SUMMARY
PRACTICE AND PROCEDURE:
Appearance/response
Costs
Appellant failed to put in a response. Default judgment entered. Appellant applied for review. Respondent had been employed for less than 12 months but claimed to have been dismissed for "health and safety" reasons. Appellant asserted the Respondent was dismissed for redundancy. Employment Tribunal refused to set aside judgment and held there was no application to extend time for the response with the consequence Appellant could not be heard at the remedies hearing. Held: default judgment to stand but response to be accepted out of time so Appellant could participate in the remedies hearing.
HIS HONOUR JUDGE REID QC
"1. The respondent's application for a review of a default judgment, in respect of the claim for unfair dismissal, sent to the parties on 20 April 2007 is refused.
2. On or before 21 June 2007 the Claimant shall inform the tribunal of his intentions in respect of the claim of sex discrimination."
I pause there to say he did, and he indicated that he was not pursuing that claim further.
"3. Remedy is adjourned to a date to be fixed. The tribunal will have to consider whether the Claimant was dismissed for a health and safety reason."
That last sentence makes it clear that the Chairman was alive to the fact that if a health and safety reason were not made out, Mr Prince would not be entitled to compensation. (The fact that it might emerge that he was not dismissed for a health and safety reason would not have deprived the Tribunal of jurisdiction, see Leicester University Students' Union v Mahomed [1995] ICR 270. It would, of course, have deprived him of any compensation).
"In any proceedings, if the relevant time limit for presenting a response has passed, a Chairman may, [my emphasis] in the circumstances listed in paragraph 20, issue a default judgment to determine the claim without a hearing if he considers it appropriate to do so."
Again, I emphasise that last phrase.
judgment. That much is clear from the last paragraph of his judgment where he says:
"no extension of time was sought"
"The first we were aware of the need to still send the first response form in was when the ACAS conciliator made her first call to us on 23 April 2007, the same date we received the default judgment order. We then called the Employment Tribunal and spoke with a lady named Sandra, who advised us to write this request for a review with explanation and to complete and return the response form from the first notice of claim.
We sincerely regret our error in misinterpreting the information we received and request you consider our application. We believe that if the tribunal allows us to present our side to them the default judgment would not stand."
It seems to me that that, contrary to the view of the Chairman, is clearly an application (a) to set aside the default judgment and (b) to allow the response to be put in out of time.
"I was discriminated against (see section 6)."
The substance of the claim is set out under the heading "Discrimination" at section 6. I should say in passing that it is clear to me, notwithstanding the instructions that Mr Grant received, that the attached sheet that had gone with the ET1 relating to the second discrimination claim was only an attached sheet relating to a discrimination claim and did not also have with it a second attached sheet duplicating the unfair dismissal claim sheet which had been attached to the unfair dismissal claim. That incidentally had also attached to it the discrimination claim sheet as was made clear by the body of that original ET1. In my view, the Chairman was entirely justified in rejecting the suggestion that there was anything misleading in the two sets of proceedings such as would excuse the failure to put in a response to the unfair dismissal claim.
"I considered Rule 33; I took into account the parties submissions. The application for review was made in time; no extension of time was sought;"
As I said, it seems to me that that is an incorrect and unduly restricted reading of the application.
"I do not accept the respondent had a good reason for the delay; the chronology indicates a lack of industry on the respondent's part and/or concern for the process viz. also the lack of particulars in the response; I did not accept Mr Harrison's evidence that he believed that ACAS would handle the case, or, in the light of the contents of the ET2 such a belief was reasonable; finally, the response forms should contain sufficient detail for the tribunal to assess the merits of the defence, it does not. In these circumstances the application for review is refused."
"61. We bear in mind the observations of Burton J in NSM Music Limited v Leefe [2006] ICR 450 that it would sometimes be proportional to allow a party to participate in the remedies hearing albeit that liability has been determined against him. We all of us consider that this is plainly such a case. Mr Henderson [he was the employer's representative in that case] was present; he could have cross-examined the Claimant and made submissions. Whereas the chairman understandably did not think it right to reopen liability, with all the delays thereby involved, that very fundamental concern did not apply to the more limited participation in the remedies hearing. Had Mr Henderson sought an adjournment to produce witnesses or further documents, there would have been every good reason to refuse it. But that was not suggested. He wanted to be able to make observations and submissions with respect to remedies, even if he could not put his side of the story with respect to liability. To exclude him in the circumstances seems to us simply a punishment for failing to comply with the Rules.
62. Punishment is clearly not the purpose of these sanctions: see the observations of Chadwick LJ in Hussain v Birmingham City Council [2005] EWCA Civ 1570, at para 36, dealing with similar provisions in the Civil Procedure Rules. 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 J in Kwik Save [1997] ICR 49 shows, an important consideration will be the extent of any prejudice to the parties. In this case there would be no prejudice to the Claimant in allowing Mr Henderson to take part; by contrast, there was an obvious prejudice against the respondents in denying him that right."
The judgment then went on to say the appropriate course was to allow the remedies hearing to go through with participation and that would have of course meant that there would be a fresh remedies hearing there and the existing award for compensation could no longer stand.