Appeal No. UKEAT/0104/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 May 2007

Before
THE HONOURABLE MR JUSTICE UNDERHILL
MR J R RIVERS CBE
MS P TATLOW

HERTFORDSHIRE WINDOW COMPANY LTD	APPELLANT

MR C R STANDLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR G SIMS
(Of Counsel)
Instructed by:
Messrs Heckford Norton
29 High Street
Stevenage
Hertfordshire
SG1 3BU	
For the Respondent	MR R STANDLEY
Representative	

SUMMARY

PRACTICE AND PROCEDURE

Absence of party

Appellant failed to attend hearing – Claimed that never received notice of hearing date – Review refused, without a finding of whether notice had been properly sent – Subsequent evidence that Tribunal had sent notice to address with wrong post-code – Review granted and case remitted for re-hearing.

THE HONOURABLE MR JUSTICE UNDERHILL

1.	On 18 October 2005 Mr Standley, the Respondent to this appeal, presented a claim to the Employment Tribunal that he had been unfairly dismissed by the Appellant, to which we will refer as ‘the company’.  The company submitted an ET3 on 28 October 2005.  On 7 March 2006 the Tribunal made an order giving directions.  At the same time, or shortly afterwards a hearing date was set for April 2006, but that date had to be vacated and the parties were told that they would be notified of a fresh date.  It appears that the company never complied with the directions of 7 March 2006.  In due course notice was sent out of a re-fixed hearing date on 20 June 2006.  It is the company’s case that it never received notice of that date.
 
2.	The hearing proceeded in the absence of the company; and by a Judgment sent to the parties on 27 June 2006 Mr Standley was found to have been unfairly dismissed and an award was made in his favour in the sum of £22,860.60.  By letter dated the following day, that is to say 28 June 2006, addressed to ACAS but fortunately also copied to the Tribunal, Mr Beech, who is a director of the company and, as we understand, the only director with day-to-day management responsibility, protested that notice of the hearing had never been received and asked for a re-hearing.  The letter was in the following terms:

“I am most shocked and disappointed to learn that a judgment has been made without offering my company the opportunity to attend and represent our side of the argument.
As you are no doubt aware the original date for this hearing was cancelled at short notice, by telephone and no further communication have been received as to any new appointment date.  What you may not be aware of was that during the aforementioned telephone conversation, I informed the young lady that as my mother was terminally ill with lung cancer and her death may well interfere with future dates.  I was assured a note would be made of this and that I would personally receive a phone call, as soon as a revised date was found to establish whether or not I could attend.
My mother has in fact passed away during the past few weeks and consequently I have not been at my desk full time, I have however, rechecked all post trays and cannot find any written notification of a revised hearing date.

I would formally request that another hearing be set in which I may be afforded the opportunity to represent the companies argument.
Should this be denied I will forward a copy of this letter and judgment papers to our solicitors.”

The crucial points to note from that letter are (a) that it stated unequivocally that no further communication had been received as to any new appointment date and (b) that Mr Beech, despite the recent absence which he explained, had checked with the company to see whether it might have arrived even in circumstances where he had not seen it straightaway.  

3.	That letter was treated as an application for a review.  The company was given notice of the review hearing and was sent a letter dated 13 July 2006 asking it to make a full statement in support of the claim for a review and to serve that on Mr Standley and on the Tribunal.  It did not comply with the direction.  However, the review hearing proceeded on 2 October 2006.  Mr Standley and Mr Beech attended.  Notwithstanding the failure to comply with the request for a statement of the grounds for the review, Mr Beech said that he wished to rely on the contents of the letter of 28 June 2006.

4.	The Tribunal refused the application for a review by Judgment sent to the parties on 11 October 2006.  The Chairman set out the history as we have summarised it above, including the Company’s failure to provide the statement required by the direction of 13 July.  The reasoning section of the Judgment was short and is in the following terms:

“It is for the person seeking to set aside a judgment to make the running and to show good reason why matters should be set aside.  As matters stand, the only two things that Mr Beech has done in respect of this matter for the company is file the original response and write the letter of 28 June 2006.  That is simply not good enough.  It is not right and it is not fair to set aside judgments in such circumstances as these.”

5.	The company appeals against the decision to refuse a review.  It has been represented before us by Mr Guy Sims of Counsel.  Mr Standley has been represented, as indeed he was at the review hearing, by his father, whose submissions on his behalf have been conspicuously clear and fair: we are most grateful to him for the help he has given.  We should also say we are grateful to Mr Sims for his helpful skeleton argument.

6.	The starting point is to consider whether the reason given by the Tribunal for refusing the application for a review is good in law.  We are bound to say that we do not think that it is.  The Tribunal apparently believed that Mr Beech had not shown “good reason why matters should be set aside”.  But it seems to us that if what he said in his letter of 28 June, namely that the company had not received any notification of the hearing date, was true then he had unquestionably shown “good reason”.  One of the grounds specified in the Rules for allowing a review is that the party in question “did not receive notice of the proceedings leading to the decision”: see rule 34(3)(b) of the Employment Tribunal Rules 2004.  

7.	The Tribunal was of course entitled in principle to reject what Mr Beech said in that letter, whether by finding simply that he was not telling the truth or (perhaps more likely) by finding that the notice had been duly served on the company but for one reason or another, perhaps because of the personal circumstances which he referred to in his letter, had not come to his attention.  But it seems to us that the Tribunal was not entitled to come to that conclusion without hearing evidence from him and making the necessary findings that notice had been duly served and giving some supporting reasons.  It did not do so.  Instead it dealt with the matter on the basis, in effect, that Mr Beech had not raised even a prima facie case.  We strongly suspect, though this is not made quite explicit in the Reasons, that the principal reason for the Tribunal’s conclusion was the company’s failure to comply with the direction to provide a full statement of the grounds relied on for a review.  That was indeed reprehensible, and the company, more specifically Mr Beech, was foolish not to comply with the Tribunal’s direction.  But we cannot accept that that failure entitled the Tribunal to treat him as if he had raised no case at all.  The letter of 28 June clearly made the essential point, namely that notice of the hearing had not been received.  We can well see why the Tribunal thought it useful to have more flesh put on the bones of that statement; and if Mr Beech had taken advice, or indeed simply used his own best endeavours to draft a statement, no doubt some further details could have been given.  But the bare bones of the point was already clearly made on 28 June, and we do not believe that it was a proportionate response for the Tribunal, if this was indeed its reasoning, simply to ignore that statement because of the failure to comply with the direction of 13 July 2006.

8.	We have considered whether the Tribunal would have been entitled to rely on the presumption of due service in rule 61 of the Rules.  This reads as follows, so far as material:

“(1)     Any notice given or document sent under these rules shall (unless a chairman or tribunal orders otherwise) be in writing and may be given or sent –
(a)     by post; …
(2)     Where a notice or document has been given or sent in accordance with paragraph (1), that notice or document shall, unless the contrary is proved, be taken to have been received by the party to whom it is addressed ……
(4)      All notices and documents required or authorised by these rules to be sent or given to any person listed below may be sent to or delivered at -
	(h)     in the case of a notice or document directed to a party:-
(i)      the address specified in the claim or response to which notices an documents are to be sent, or in a notice under paragraph (5); or … 
(5)     A party may at any time by notice to the Employment Tribunal Office and to the other party or parties (and, where appropriate, to the appropriate conciliation office) change the address to which notices and documents are to be sent or transmitted.”

But the presumption in paragraph 2 cannot assist in the present case.  In order for it to apply the Tribunal has to be satisfied that the notice in question has been sent by post to the correct address, being, by virtue of paragraph 4(h)(i), the address specified by (in this case) the company as the Respondent in its ET3.  There was no enquiry by the Chairman to establish whether that was the case, and in fact if such an enquiry had been made it would have been shown that the notice was not correctly addressed: we will return to this point in due course.

9.	We therefore find that the Tribunal made an error of law in its decision refusing to review its original substantive decision.  The question then is whether we should remit the application to that Tribunal, or perhaps a different Tribunal, for further consideration or whether we should decide it ourselves.  Both parties have asked us to take the latter course, and we think that it is appropriate to do so.  As will appear, we do not think that there is a need for a factual enquiry of a kind which only the Employment Tribunal could carry out.

10.	What has emerged since the review hearing is that the Tribunal had on its files an incorrect post-code for the company.   The company’s full current address, as given by it in its ET3, is Alpen House, Blackhorse Road, Letchworth, Hertfordshire SG6 1HB.  We have a letter from the Tribunal office sent to the company’s solicitors on 24 November 2006  - that is to say subsequent to the review decision - stating that “the Tribunal’s records show the address of the Hertfordshire Window Company as Alpen House, Blackhorse Road, Letchworth, Herts SG6 1BH.”  It will be seen, at least by the sharp-eyed, that the last two letters of the post-code are transposed.  What seems to have happened is that the company had indeed had a previous address, only a short distance away in Letchworth, with a IBH post-code.  Mr Standley had in his ET1 given the correct i.e. current, address for the company, but the old post-code.  That was entirely forgivable because he had taken the address and the post-code off his P45: thus the error originated in the Company’s own office.  Nevertheless the fact is that in its ET3 it had given the correct address and post-code, and the Tribunal was at fault in failing correctly to use that address and post-code instead of, as it appears to have done, taking the address from the ET3 but the post-code from the ET1.  In the light of the fact that the Tribunal records had the incorrect post-code for the company and it must be assumed, used that incorrect post-code consistently in the letters which it sent out to the company, there is at least some support for what would otherwise be Mr Beech’s bold statement that the Company never received notice of the hearing.  It is perfectly true that it does seem to have received all the Tribunal’s other communications, numbering at least five and possibly more, notwithstanding what must be presumed to have been the use of the wrong post-code on those communications also; but Mr Sims makes the fair point that the fact that the postman may on some or indeed most occasions have managed to deliver the letter correctly despite the use of the wrong post-code does not mean that that will have happened on every occasion.  The fact remains that this was a misaddressed letter.

11.	Mr Standley senior in his submissions was very willing to accept that Mr Beech was telling the truth so far as his statement went that he personally had never received the notice of the hearing: that was a fair, but also a realistic, concession.  He said however that the probabilities were not that the letter had never been delivered to the company - after all, the others had been - but that it had in fact arrived but been handled by the staff during Mr Beech’s absence for the compassionate reasons referred to in his letter in such a way that it had not come to his attention and was not found by him in the subsequent checking exercise which he refers to.  That is indeed possible.  It is frankly not possible at this distance of time to know precisely how it came about that this letter did not come to Mr Beech’s attention.  But what is important is that as Mr Standley realistically accepts that, whatever the precise explanation, it is very likely that the notice of the hearing did not reach Mr Beech personally.  The fact is that it is extremely unlikely, given (a) that the company had served an ET3 and (b) that Mr Beech protested immediately when he learned of the hearing having proceeded in his absence, that this was of an irresponsible employer simply ignoring Tribunal correspondence in the hope that it will go away: we do sometimes come across such cases, but this does not appear to be one of them.  Mr Beech did himself no favours by failing to comply with the two orders for directions to which we have referred, but it is plain that nevertheless he intended to defend this claim.  

12.	In all those circumstances we do not believe that it can be in the interests of justice for the Tribunal’s decision of 27 June 2006 to stand.  It must be set aside, and there will have to be a re-hearing of Mr Standley’s claim.  It goes without saying, but we should make it clear that we understand, that this is a very unfortunate outcome.  We can appreciate that Mr Standley will feel aggrieved at having to go through a further hearing to seek to prove his case all over again, particularly given that he at least has done nothing wrong.  But in the interests of justice it is generally not acceptable for a party to be subjected to an order, - and the order in this case is for a substantial sum of money in circumstances - where it has had no opportunity to defend the case.  In the greater interest of justice it is necessary that the real inconvenience to Mr Standley which we appreciate will have to be put up with.