EAT PRACTICE AND PROCEDURE – Right to be heard
After the conclusion of an oral hearing in a claim for unfair dismissal the Employment Tribunal directed that the parties lodge written submissions. The Claimant prepared submissions and served them on the Respondent but for some reason or mishap, they were not sent to the Employment Tribunal.
The meeting in chambers of the members of the Employment Tribunal was adjourned at the last minute on two occasions and did not take place until 5 months after the conclusion of the hearing. When the Employment Tribunal met in chambers it was appreciated for the first time that although the Respondent had lodged its submissions, none had been lodged by the Claimant. The Employment Tribunal considered that the Claimant had decided not to lodge submissions and went ahead to consider its decision on the basis of the Respondent submissions alone. It did not consider making enquiries as to why there were no submissions from the Claimant. The Employment Tribunal went on to dismiss the Claimant’s claim.
The Employment Appeal Tribunal held following the decisions of London Borough of Southwark v Bartholomew [2004] ICR 358 and Cooke v Glenrose Fish Company Ltd [2004] IRLR 866 that the case was analogous to that where a party had failed to attend a hearing. In the circumstances of the case the Employment Tribunal should have at least considered whether to make a telephone call to enquire as to the reason. The making of a telephone call was good practice, failure to make such a telephone call was an extreme step and there needed to be very good reason why the course of making the telephone call could not have been followed before taking the extreme step of proceeding on the basis of the Respondent’s submissions alone.
The right of a party to make submissions on points of fact and law in an Employment Tribunal is an important right to ensure a fair hearing and is expressly provided for by rule 27(2) of the Employment Tribunal Rules of Procedure. Very good cause must be shown before a litigant is deprived of that right.
The Employment Tribunal appeared not to have asked itself the correct question (‘what was the reason for the absence of the submission?’) but asked itself instead why the Claimant had decided not to file one.
Although the decision to proceed in the absence of enquiry was a case management decision, it had led to a breach of natural justice. The Employment Appeal Tribunal would not overturn a decision based upon a breach of natural justice unless it could be shown that the breach was not simply technical and that the party concerned had suffered something which was ‘seriously irregular and unfair’; Mayo-Deman v Lewisham College [2003] UKEAT/0104/02, BAILII: [2003] UKEAT 0104 – 02 – 0812, applied.
The Claimant did not have to prove that consideration of the submissions would definitely have led to a different conclusion; it was sufficient that the Claimant had demonstrated that there was a real possibility that consideration of the submissions may have led to a different result. It was impossible on the facts of this case to say that the result would have been the same in any event had the submissions been considered.
Appeal allowed and case remitted for rehearing by a fresh Employment Tribunal.
Judges:
Serota QC
Citations:
[2012] UKEAT 0422 – 11 – 1601
Links:
Jurisdiction:
England and Wales
Employment
Updated: 06 October 2022; Ref: scu.452331
