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||BAILII case number:  UKEAT 0181_06_1905
||Appeal No. UKEAT/0181/06
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 19 May 2006
MR RECORDER LUBA QC
|MS N D HAMLING
|COXLEASE SCHOOL LTD
Transcript of Proceedings
© Copyright 2006
|For the Appellant
||MR PETER DOUGHTY
Messrs Knight & Co
18 Romsey Road
|For the Respondent
Practice and Procedure. Employment Tribunal Chairman rejecting claim form on basis that Claimant's address not given (but Claimant's solicitors' name and address were given). Application for review refused by Chairman. These appeals, against both decisions, raise the questions (1) whether the procedural rules are absolute and/or (2) whether their rigour may be tempered on a review.
MR RECORDER LUBA QC
- This is an appeal by a Claimant (a former employee) against two Orders made by a Chairman of the Employment Tribunals (sitting alone) in relation to her claims that the Respondent (the former employer) had unfairly dismissed her, had discriminated against her on grounds of sex and/or disability, and had wrongly calculated her statutory redundancy payment (if, as the Respondent asserted, she had been dismissed by reason of redundancy). By the first of those orders, the Chairman directed that the Claimant's claim form be rejected because it did not set out the Claimant's address (although it did set out the name and address of her legal representatives). By his second order, the Chairman refused a request for a review of that decision.
- This matter was listed before me on 19 May 2006 for disposal. The Respondent had put in short written submissions and indicated that it did oppose the appeal. It gave notice that it would not appear or be represented at the hearing. I heard Mr Doughty of Counsel for the Appellant. From his submissions it appeared to me that the Appellant was pursuing an appeal against both the decisions mentioned above although that fact did not emerge clearly from either the Notice of Appeal or from the Appellant's Skeleton Argument. I gave permission to amend and re-serve those documents and adjourned the appeal with Directions. They included provision for a further Respondent's Answer and gave both parties an opportunity to be heard orally (on application).
- In the event, the Notice of Appeal was amended, an amended Skeleton Argument was lodged, the Respondent presented no new submissions, and neither party sought to be heard further on the appeal. Accordingly, and as foreshadowed by my earlier Directions, I have determined the appeal on the now enlarged papers together with the additional benefit of the helpful initial oral submissions of Mr Doughty.
- This appeal is, sadly, but the latest in a series of such appeals arising from the strict application by the Secretaries and Chairmen of Employment Tribunals of the relatively new rules of procedure governing the required content of claim forms presented to the Employment Tribunal Service. In his judgment given in February of this year in Butlins Skyline Ltd v Benyon EAT/0042/06 HHJ Burke QC said this (at [21)]:
It is well known that certain aspects of the 2004 Rules have created considerable difficulties for Tribunals and for parties to Tribunal proceedings. Chairmen have been confronted by a number of situations in which one party or the other appears, pursuant to the Rules, because of some failure, or supposed failure, to comply strictly with the requirement of the Rules to be in a position in which he or she is unable to pursue a claim or to defend a claim on the merits. As a result, a number of decisions has been made by the Employment Appeal Tribunal which throw light on the manner in which some, at least, of the difficulties which have arisen can and should be resolved.
- His judgment then contains an illuminating review of those cases which I gratefully adopt but shall not repeat. Before coming to the facts of this appeal, I shall first outline the relevant provisions.
The Procedural Rules
- The procedural rules applicable to Employment Tribunals are now contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI No 1861 which came into force on 1 October 2004. They were obviously intended to introduce a wholly new regime of procedural arrangements for the Employment Tribunal Service. In Schedule 1, the regulations set out new rules of procedure to be followed in relation to claims made to the Employment Tribunal Service.
- The first part of the Schedule is headed 'How to bring a claim'. It contains only Rule 1 which is itself entitled 'Starting a claim'. Rule 1(1) provides that:
'A claim shall be brought before an employment tribunal by the claimant presenting to an Employment Tribunal Office the details of the claim in writing. Those details must include all the relevant required information…'.
- The "required information" is defined by Rule 1(4) as follows:
"1(4) … the required information in relation to the claim is
(a) each claimant's name;
(b) each claimant's address;
- Beyond the requirements that the claimant gives his or her name and address in accordance with Rules 1(4)(a) and (b), the sub-rule continues by setting out a further half-a-dozen requirements as to what information the claim form must contain. It is no part of the full list of 'required information' that the Claimant must, if acting by a representative, give the representative's name and address. However, the prescribed claim form does include specific spaces where that information can be provided.
- What happens, upon delivery of a claim form to the Employment Tribunal Office, is then prescribed by Rule 2 ('What the tribunal does after receiving the claim'). That rule provides:
"(1) On receiving the claim the Secretary shall consider whether the claim or part of it should be accepted in accordance with Rule 3. If a claim or part of one is not accepted the Tribunal shall not proceed to deal with any part which has not been accepted (unless it is accepted at a later date)."
- It is Rule 3 that governs the action that the Secretary shall take on examination of the claim received. Rule 3(2) provides that:
"The Secretary shall not accept the claim (or a relevant part of one) if it is clear to him that one or more of the following circumstances apply –
(a) the claim does not include all the relevant required information;
- Rule 3(3) then provides as follows:
"(3) If the Secretary decides not to accept the claim or part of one for any of the reasons in para (2), he shall refer the claim together with a statement of his reasons for not accepting it to a chairman. The chairman shall decide in accordance with the criteria in para (2) whether the claim or part of it should be accepted and allowed to proceed."
- Rule 3 continues by specifying what action the Chairman shall take depending upon the decision that he makes on the referral from the Secretary. Rules 3(4) and 3(5) provide that:
"(4) If the chairman decides that the claim or part of one should be accepted he shall inform the Secretary in writing and the Secretary shall accept the relevant part of the claim and then proceed to deal with it in accordance with rule 2(2).
(5) If the chairman decides that the claim or part of it should not be accepted he shall record his decision together with the reasons for it in writing in a document signed by him. The Secretary shall as soon as is reasonably practicable inform the claimant of that decision and the reasons for it in writing together with information on how that decision may be reviewed or appealed."
- Rule 3(8) explains that any decision by a Chairman not accept a claim may be reviewed in accordance with Rules 34 to 36. They provide:
"Review of other judgments and decisions
34. - (1) Parties may apply to have certain judgments and decisions made by a tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are -
(a) a decision not to accept a claim, response or counterclaim;
(b) a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and
(c) a decision made under rule 6(3) of Schedule 4;
and references to "decision" in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules.
(2) In relation to a decision not to accept a claim or response, only the party against whom the decision is made may apply to have the decision reviewed.
(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only -
(a) the decision was wrongly made as a result of an administrative error;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) the interests of justice require such a review.
(4) A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraphs (3)(a) and (e).
(5) A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraphs (3) or (4).
Preliminary consideration of application for review
35. - (1) An application under rule 34 to have a decision reviewed must be made to the Employment Tribunal Office within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.
(2) The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), but if the decision to be reviewed was made at a hearing, an application may be made orally at that hearing.
(3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision or, if that is not practicable, by -
(a) a Regional Chairman or the Vice President;
(b) any chairman nominated by a Regional Chairman or the Vice President; or
(c) the President;
and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.
(4) If an application for a review is refused after such preliminary consideration the Secretary shall inform the party making the application in writing of the chairman's decision and his reasons for it. If the application for a review is not refused the decision shall be reviewed under rule 36.
36. - (1) When a party has applied for a review and the application has not been refused after the preliminary consideration above, the decision shall be reviewed by the chairman or tribunal who made the original decision. If that is not practicable a different chairman or tribunal (as the case may be) shall be appointed by a Regional Chairman, the Vice President or the President.
(2) Where no application has been made by a party and the decision is being reviewed on the initiative of the tribunal or chairman, the review must be carried out by the same tribunal or chairman who made the original decision and -
(a) a notice must be sent to each of the parties explaining in summary the grounds upon which it is proposed to review the decision and giving them an opportunity to give reasons why there should be no review; and
(b) such notice must be sent before the expiry of 14 days from the date on which the original decision was sent to the parties.
(3) A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing, a new hearing must be held."
- As can be seen, Rule 34(1)(a) provides for review of a Chairman's decision not to accept a claim but the effect of Rule 34(4) is to restrict the available grounds for review of such a decision to either (i) administrative error or (ii) the interests of justice. Any such application will be subject to the preliminary consideration envisaged by Rule 35.
Factual Background to The Present Appeal
- On 19 December 2005 the Claimant's claim form was submitted to the Employment Tribunal Office by fax transmission. The claim was made on the prescribed form ET1.
- In section 1 of that Form ('Your Details') there had been entered the Claimant's title, full first names, surname and date of birth. No entry was made in relation to "Address" or "Phone Number" or in response to the question "How would you prefer us to communicate with you?" The word "Address" on the pro-forma ET1 carries an asterisk intended to signify an entry that must be completed. Indeed, the on-line version of the ET1 (as used in the instant case) is accompanied by the following explanatory note:-
"If you do not provide the information marked with an asterisk (*) your claim will not be accepted"
- The remaining sections of the form having then been completed, in section 12 ('Your Representative') the following pre-printed text appears
"Please fill in this section only if you have appointed a representative. If you do fill this section in, we will in future only send correspondence to your representative and not to you"
- It is also convenient to note at this point that in the Explanatory Notes, accompanying the on-line version of the ET1 form, the following appears:-
"12. Your representative. You only need to fill in this section if you have appointed a representative. …We will only deal with your representative if you appoint one – we will not deal directly with you. Please do not give the name of a representative unless they have agreed to act for you."
- In the instant case, in the relevant parts of section 12 of the ET1, the Claimant gave the name of her solicitor, that firm's address and phone number, a reference number, a fax number and an Email address. Those details were confirmed on both a covering letter submitted by the solicitors with the claim form and by the fax cover sheet under which it was transmitted. The ET1 itself is signed by the solicitors whom the Claimant had instructed.
- Attached to the ET1 was a 41-paragraph typescript, occupying 13 pages, headed "Details of the Claimant's Complaint". It particularises the Claimant's numerous claims including those that I have summarised at paragraph 1 of this judgment. The time limit for some of those claims expired on 22 December 2005.
- The procedural mechanism for the consideration of the claim as set out in the Rules of Procedure was then applied in the present case. The Secretary identified that the claim form had been lodged without giving the Claimant's address. The Secretary considered the claim form did not comply with the requirement to provide 'the relevant required information'. The matter was referred to a Chairman
- By letter dated 9 January 2006 addressed to the Claimant's solicitors, the Regional Secretary to the Tribunal Service acknowledged receipt of the form and notified the Claimant that it had been referred to a Chairman (Mr SJW Scott). The letter advised that the Chairman had decided that the claim could not be accepted because the Claimant had failed, in breach of Rule 1(4), to give her address on the claim form. By the letter, the Claimant's claim form was returned to her solicitors and she was notified that she might apply for a review of the Chairman's decision or, alternatively, appeal to this Employment Appeal Tribunal. That was notice of the first decision subject of the present appeal. My papers do not include the actual written record of the reasoned decision made by the Chairman in accordance with Rule 3(5) nor the earlier decision of the Secretary that had accompanied the referral to him.
- By letter dated 11 January 2006 the Claimant applied for a review of the Chairman's decision. The letter enclosed a new ET1 containing the Claimant's address and explained that the person completing the form for the Claimant had understood that the address need not be given if the Claimant was acting by a representative (where that representative's details had been given). The request for review made the additional points that (1) the representative had telephoned the Tribunal Office on 20 December 2005 and had been given confirmation of receipt of the claim form and (2) notice of rejection of the claim form had not been received until 10 January 2006 by which date some of the time limits for the Claimant's claims had expired. Sadly, all of these assertions were contained on the first page of the solicitor's letter of 11 January 2006 which page was not actually transmitted to or received by the Tribunal Service nor seen by the Chairman. In the second page (which was transmitted) the request for review was put on the "interests of justice" ground (Rule 34(3)(e)) and it was said that the correspondence concerning rejection of the form demonstrated that its content had been sufficient for the Tribunal Office to contact the Claimant through her representatives.
- By letter of 17 January 2006 the Tribunal Office notified the outcome of the application for review in the following terms:
"Your application has been considered by a chairman Mr SJW Scott, who has rejected it for the following reasons: the Claimant's address is relevant required information under Rule 1(4) and the claim was properly rejected under Rule 3(2)(a)"
- That decision of the Chairman, essentially to reject the request on a preliminary consideration, is the subject of the second part of the appeal before me.
- The application for review having been rejected, the Claimant's solicitors requested the Chairman's full reasons. The Chairman then provided amplified reasons for rejecting the review request in a letter dated 25 January 2006. He acknowledged that the review had been sought on the basis that the interests of justice required one (see Rule 34(3)(e)) and had been rejected by him under Rule 35(3) on the ground that any such review would have had no reasonable prospect of resulting in a variation or revocation of the original decision. The Chairman's reasons continue as follows at paragraphs 4 and 5:
"4. The Chairman made such a ruling because he considered that the requirement of Rule 1(4)(b) [i.e. the requirement to give as part of "the relevant required information" the Claimant's address] is clear and unambiguous and does not allow for interpretation or the exercise of judicial discretion, as for example, was held to be appropriate in different circumstances in Grimmer v KLM Cityhopper UK  IRLR 596.
5. Nevertheless (sic), the Chairman observes that a party's instructions to solicitors to act, or solicitors' agreement to act, may both be withdrawn at any time. In that event, a means of contacting a party who has failed to supply a contact address and telephone number could be lost, with significant consequences. It would not be in the interests of justice to allow the risk of such a situation to arise."
- The reference in the last of those extracted paragraphs, to the question of a party's instructions to solicitors, provides the Chairman's rejoinder to the assertion made (in the request for a review) that the claim form contained the solicitors' address for the Claimant and that provided a sufficient means of communicating with her.
- The Chairman's reasons given on 25 January 2006 continue by explaining that no difficulty need arise from the rejection of the initial claim form because the claim form can be resubmitted once completed and if any aspect of the Claimant's claim be then out-of-time that can be dealt with in the usual way (for example, by being made subject of an application to extend time).
The Appeal against the Chairman's First Decision
- Mr Doughty for the Claimant submitted, in his helpful amended Skeleton Argument and in his oral submissions, that the Chairman's first decision to reject the claim was made in error of law. In summary, his submissions were that:
(1) The omission of the Claimant's own address was, in the circumstances of this particular claim, "immaterial" as the form contained the name and address and other contact details of her solicitor through whom it was possible for the Employment Tribunal Office or the Respondent to communicate with her.
(2) The impact of excluding her claim form on the ground that her address had not been given would be disproportionate, on the facts of this case, in that one or more of her claims would be time-barred.
(3) Regulation 3 of the 2004 Regulations provide that the operation of the Tribunal's rules shall be subject to the application of the "overriding objective" i.e. to ensure that cases are dealt with justly. In this case, the Chairman failed to have regard to be overriding objective in deciding to reject the claim form.
(4) The Claimant's statutory right to make her claims as advanced before the Employment Tribunal arises from provisions of primary legislation and she cannot be or should not be debarred from exercising those rights by the requirements of procedural rules. For that proposition Mr Dougherty relies on Grimmer v KLM Cityhopper UK  IRLR 596.
- His fundamental submission - as encapsulated in the amended Notice of Appeal (paragraph 8) is that the Chairman should have appreciated that a rejection of the claim form (for failure to furnish a personal address) would lead to a time bar being applied to the Claimant's statutory claims, that the omission of the claimant's address was "immaterial" and that, accordingly, the overriding objective required him to accept the claim form and allow the claim to proceed.
- The written submissions for the Respondent assert that the Chairman "had no option but to reject the claim, Rule 1(4)(b) not having been complied with" and that "the wording of Rule 3(2)(a) allows no margin for judgment or derogation".
- In my judgment, the starting point for consideration of those submissions must lie in the true construction of Rules 1 – 3 of the procedure rules. As is manifest, they impose what appear to be firm procedural requirements as to the content of the claim form. The question to be determined is whether those requirements are to be treated as 'absolute' with the automatic consequence that any omission to comply with the requirement to give 'required information' is necessarily fatal to the validity of the claim form.
- On that issue of construction one must first have regard to the words used in the regulations but thereafter also to the policy background to the introduction of the new Rules. It is plain that the purpose and function of the new Rules was to tighten-up the previous procedures being observed (or breached) in the Tribunal Service and to ensure that in future more rigorous application of the rules would be enforced by the Tribunal Service itself. On the other hand it is important to appreciate that the Rules are simply a procedural vehicle to enable important statutory claims to be advanced before the Tribunal service.
- On a true construction of the Rules, I am not satisfied that the exercise of consideration by a Chairman, on a referral of a claim form by the Secretary, is confined to the mechanistic exercise of checking-off the list of required information in Rule 1(4) against the content of the form. The rules envisage both an administrative scrutiny (by the Secretary) and a judicial scrutiny (by the Chairman). Obviously, the Chairman's role under Rule 3(3) envisages (in part) a double-check as to whether there has been any omission at all but it goes further than that. It is a truly judicial function. As HHJ Prophet has said in Grimmer v KLM Cityhopper UK  IRLR 596 (at ):-
The Chairman, unlike the Secretary whose functions are administrative has, as an independent judicial person, to do more than merely run down a checklist. He or she must have in mind the overall interests of justice. It is a very serious step to deny a claimant or for that matter a respondent the opportunity of having an employment rights issue resolved by an independent judicial body i.e. an Employment Tribunal. Most Chairmen would not wish to feel forced to do so without there being a very good reason.
- First, the Chairman must consider whether the omission is of "relevant" required information: see Rules 1(1) and 3(3)(a). Even material as set out in Rule 1(4) need not be provided unless it is "relevant" that it be provided in the particular claim form. That question does not appear to have been addressed by the Chairman in the instant case at the point of his initial decision. If it had been, the question would have been whether the Claimant's personal address was "relevant" where, as here:
(1) the claim form has been submitted by a solicitor on instructions (as evidenced not least by the cover under which it was received and the fact that it is signed for the Claimant by solicitors);
(2) the claim form indicates that if a representative's details are given all further communication will be with the representative; and
(3) the claim form gives full particulars for the instructed solicitor as representative.
- In my judgment, the Claimant's personal address was not "relevant…information" in the context of the instant case and the Chairman erred in both failing to address that matter in his initial decision and in failing to decide that the omitted information was irrelevant. I do not overlook the point made by the Chairman (in later dealing with the review request) that a claimant's address may be relevant information if representatives are later discharged or it becomes difficult or impossible to communicate with them but that was not the situation that presented itself on the Chairman's consideration of the claim form.
- Even if I am wrong as to that, it seems to me that there is a second element in the judicial consideration that a Chairman must give to a claim form that has been referred to him as not providing "relevant required information". That is, whether the failure in question is material or immaterial. For example, although the requirement is that the claimant gives their "name" it may be that an individual claimant gives only initials for their forenames rather than the full forenames. That would, in my judgment, be an immaterial non-compliance with the requirement to give the claimant's name. Likewise the claimant may give a truncated version of their postal address. Nevertheless, if it is possible to communicate with them by post - using that truncated address - the entry may suffice even though it is not the claimant's whole address. Much learning on that subject is to be gleaned from statutory requirements in relation to the completion of forms in other fields. The field of landlord and tenant law is notoriously littered with judicial pronouncements on the adequacy or otherwise of the completion of particular forms and the compliance with requirements relating to those forms. From that jurisprudence it is plain that the proper course is for a Tribunal Chairman to ask himself whether, even in the face of the mandatory requirement as to the completion of a form, the failure is material or immaterial in the particular circumstances of a case. The point was made clearly by Burton J (while President) in Richardson v U Mole Ltd  IRLR 668 when seized of an appeal concerning a failure to provide in a claim form another of the items of "required information" listed in Rule 1(4). He said by way of introduction (at para ):-
I have seen other examples, either waiting in the wings for appeal or being dealt with on our sift, where respondents have, by error, omitted, for example, in one case an address, resulting in their response being rejected and their being thus debarred from defending a claim. That is not an appropriate use of the Rules and in my judgment the better course is to construe the Rules in order to avoid such injustice.
He then set out in an approach to the issue of compliance with Rule 1(4) which (in paras  and ) addresses the question of whether the error or failure was a material or "immaterial" one.
- The question for each Chairman faced with a failure to give the required information is, accordingly, whether the omission is material or immaterial in the context of the particular claim and the requirement in the Rules.
- In the instant case, therefore, the Chairman ought to have asked himself both whether the omission of the Claimant's address from the present claim form was (1) a "relevant" omission and (b) a "material" or immaterial omission. In asking and answering both questions, the Chairman was required to have regard to the overriding objective in Regulation 3. That emerges plainly again from HHJ Prophet's judgment in Grimmer (at para ) itself adopted and applied by HHJ Burke QC in Butlins Skyline. It also echoes what was said by Lord Woolf MR in Secretary of State v Ravichandran  1 WLR 354 at 359:
"Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances: see Brayhead (Ascot) Ltd. v. Berkshire County Council  2 Q.B. 303, applied by the House of Lords in London & Clydeside Estates Ltd. v. Aberdeen District Council  1 WLR 182. "
- Given that the Claimant had provided in the claim form a name and address for her solicitor representatives I am quite satisfied the Chairman in the instant case ought to have treated the omission to furnish her personal address as both irrelevant and immaterial. Accordingly, there was no breach of the relevant rule.
- Complaint could hardly have been made if the Claimant had entered next to "Address" in section 1 of the form ET1 the words "Care of my solicitors address given in section 12". Given the full completion of section 12, and in the context of the guidance notes on completion of the form, the same effect was achieved in the instant case despite the absence of those actual words.
- On that basis I reject the Respondent's submission that the Chairman "had no option" or that there was "no margin for judgment". I am satisfied that the Chairman erred in law in rejecting the initial claim and I allow the appeal against the decision notified on 9 January 2006.
The Appeal against the Rejection of the Request for Review
- That would ordinarily render the appeal against the Review decision academic. However, Mr Doughty had initially attended before me on the appeal inclined to argue that the only appropriate way in which to approach this case was to treat Rule 1(4) as absolute (and the Chairman's initial decision on it as both inevitable and correct) but to accept as an available escape route from it (in an appropriate case) the Chairman's power to review decisions under Rule 34(3). In particular Mr Doughty had initially relied only upon the 'interests of justice' avenue or gateway to a review as contained in Rule 34(3)(e) and asserted that it had been satisfied here so that the request should have been allowed and a review undertaken on the merits.
- Relying upon Richardson v U Mole  IRLR 668 at paragraphs 15 to 19, he advanced the proposition that where the error on the claim form can be regarded as explicable or immaterial the claim form should be allowed to go forward as the result of a review because of the interests of justice so required. Further, that the Chairman's self- direction that he had no discretion (see paragraph 4 of his reasons) was erroneous (Ground 2 of the Notice of Appeal) or perverse (Ground 3). He submitted that the modern authorities had been summarised in Butlins Skyline Ltd v Beynon UKEAT/0042/06/DA at paragraphs 25, 30 and 35 in a manner consistent with his submissions.
- Accordingly, Mr Doughty contended that the interests of justice here had required a review and the Chairman should have allowed a review to take place, reviewed his decision, and allowed the claim form to go forward.
- The Respondent submitted that the Chairman had not acted perversely in concluding that the request for a review should be rejected and, indeed, had been right to hold that a review would have had no prospects of achieving a different decision.
- Mr Doughty's attack on the exercise of the Chairman's discretion was – as his amended Skeleton Argument recognised – somewhat undermined by his solicitors' failure to transmit a material part of the letter making the case for the review. The Chairman can hardly be criticised for failing to take into account what he had not seen.
- As to his broader criticisms of the refusal of the request for a review, with great respect to Mr Doughty, and with even greater respect to those of my judicial brethren who have promulgated some of the decisions referred to above, I regret that I am unable to uphold the challenge on the grounds advanced.
- True it is that Rule 34(3)(e) does offer the opportunity for a review where it is required 'in the interests of justice'. But in truth the submission made by Mr Doughty is that the interests of justice required a review because the Chairman had erroneously applied the procedural rules. In my judgment, that is not an appropriate use of the power to request a review. An error of law in the Tribunal Chairman's initial decision should be challenged (as it was properly challenged in the present case) by an appeal to this Employment Appeal Tribunal.
- In the instant case the Tribunal Chairman would have been absolutely right to have rejected the request for a review if he had correctly taken the initial decision. It was simply a disguised challenge to his ruling that the claim form failed to comply with the requirements to provide 'relevant required information'. It was, in truth, an assertion that he had erred in law. The function of Rule 34(3)(e) is to provide a gateway to the exercise by a Chairman of the power of review. Had the initial decision been correctly made, the Tribunal Chairman would have been right to hold that that gateway was not satisfied on the facts of the present case.
- I would therefore have otherwise dismissed the appeal against the Chairman's decision declining to entertain a review. All the issues as to relevancy, materiality and the requirements of the overriding objective can be - and should have been - addressed in the initial decision made under Rule 3. I fully appreciate that in so holding I am departing from the approach taken by my judicial brethren to the effect that the requirements of Rule 1(4) can be conveniently short-circuited (in an appropriate case) by an application for a review "in the interests of justice" in the course of which an applicant can advance a compelling case as to the reasons for a non-compliance with the Rule and as to why that rule should not be applied in full strictness. For the reasons I have given, I prefer the approach of looking first at the scope, construction and application of the relevant Rules. If they have been properly construed and complied with (by a Chairman directing himself to the questions of whether – seen through the prism of the overriding objective – the omitted information was relevant or material) then that decision will be amenable only to appeal. It seems to me that in the ordinary case nothing under the rules relating to a "review" can provide an avenue for "special pleading" so as to cause the re-opening of a decision to reject a claim form that fails to give relevant required information that is material to the claim.
- In the event, the decision to refuse a review in the instant case was erroneous in law because the reasons for it were tainted by the same misdirection as to the scope of the exercise of judicial discretion in Rule 3(5) as undermined the initial decision.
- For the reasons given above, the appeals will be allowed and I give the direction that the Chairman should have given: that the claim form delivered on 19 December 2005 be accepted.
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