By Charles Crow
The facts of the unfair dismissal claim in Mrs V. Quashie v. Methodist Homes Housing Association (UKEAT/0422/11/DM) are not germane to the issues on appeal, for reasons that follow. Suffice it to say, the claim was dismissed by the Employment Tribunal following a hearing over two days in December 2009 and a decision in chambers on 21st May 2010 in what the EAT described as “a detailed, careful Judgment in which it found comprehensively for the Respondent”.
At the conclusion of the hearing in December 2009 there was insufficient time for closing submissions from the parties, both of whom were represented. Accordingly, an order was made for the filing (and mutual exchange) of written submissions.
The written submissions of the Claimant were never received by the Tribunal. The appeal proceeded on the assumption that there were never sent, i.e. that the fault was on the part of the Claimant’s representative.
Due to unforeseen and unavoidable circumstances, two dates proposed for the Tribunal to meet and deliberate had to be vacated. As a result, it was not until 21st May 2010 that the three members of the Tribunal met in chambers. Only at this point did it become apparent to the Employment Judge that no written submissions had been received from the Claimant.
The Tribunal elected to make no enquiries as to the non-receipt of submissions from the Claimant’s representatives and proceeded to decide the case taking account of the evidence and the submissions of the Respondent.
Prior to coming on for a full hearing before the EAT, the EAT referred the matter back to the Employment Tribunal for answers to a Burns/Barke enquiry; and the Claimant/Appellant refused to take up the suggestion of an application for a Review on the grounds of a concern that the Tribunal might not be able ‘to bring a fresh mind bear’.
The EAT analysed the Burns/Barke responses of the Employment Judge as follows:
•    The Tribunal made no effort to ascertain why no submissions were available from the Claimant’s representatives, and indeed did not consider making such enquiries;
•    The Tribunal proceeded on the assumption (based solely upon the absence of any submissions) that the Claimant did not wish to put submissions in;
•    The Tribunal proceeded in this way on account of the delay to date, and the fact that it was confident that it understood the arguments being pursued by the Claimant.
The EAT concluded that it would not have taken much time to ascertain, by way of a telephone call, whether the Claimant’s representatives had produced written submissions (in which they could be quickly transmitted to the Tribunal), or had not produced submissions (in which case it could fairly proceed in the absence of such submissions). The EAT did not consider that such enquiries would cause any significant delay to the decision making process on 21st May 2010.
In light of the analogy drawn with cases in which Tribunals must consider proceeding the unexplained absence of one party, the EAT considered the following caselaw: London Borough of Southwark v. Bartholomew [2004] ICR 358,    Cooke v. Glenrose Fish Co. [2004] IRLR 866, Gayle v. Sandwell and West Bromwich Hospitals NHS Trust [2011] EWCA Civ 924 and Mayo-Deman v. Lewisham College [2003] UKEAT/0104/02.
Having done so, it drew the following conclusions:
(i)    That the Tribunal should “not underestimate the gravity of denying a fundamental right in litigation … to make submissions on the evidence and law before judgment”;
(ii)    That whilst the EAT was not appraised of factual matters and would not look at the detail of the submissions, they did “appear to be well reasoned and make powerful points both on the factual issues and issues of credibility”;
(iii)    It was not necessary for the Claimant to demonstrate that the absence of her submissions definitely made a difference to the decision; in these circumstances (namely, the deprivation “of the opportunity to make representations at all, which was available to the other party”) it was sufficient for there to be a re-hearing that there was a real possibility that the submissions would have led to a different result;
The EAT therefore allowed the appeal and remitted the case for rehearing before a fresh tribunal.
With regard to (i) and (iii), there did not seem to be any analysis on the part of the EAT of the fact that the appeal was proceeding on the basis that the Claimant had failed to abide by the order to submit submissions within a set timescale (or at all). There was no suggestion by either party in this appeal that the Claimant had been deprived of the opportunity per se.
This case demonstrates that neither you nor a Tribunal can assume, without more, that the absence of the other side (either at a hearing, or by way of written submissions) means that it will be safe to proceed. Tempting though it may be to do otherwise, a Tribunal proposing to proceed in the absence of a party should be reminded of the requirement to consider the making of telephone enquiries.
Perhaps the most surprising part of the EAT’s decision was the conclusion that it was appropriate to remit the matter to a fresh tribunal for a complete re-hearing of the case, years after the events in question. It so concluded, having considered the authority of Sinclair Roche and Temperley, on the basis that the comprehensive and detailed nature of the Tribunal’s original decision was such that “it would be extremely difficult for any Tribunal in those circumstances to demonstrate that it was bringing a completely fresh and impartial mind to any re-hearing” and so would constitute (in the eyes of an informed bystander) “too obvious an opportunity for the Employment Tribunal to have a second bite at the cherry”. How this tallies (in particular) with the mechanism for review preserved in the Tribunal rules and/or (to a lesser extent) with the practice of judges on occasion (for example, the EAT in this case) of giving preliminary indications at the start or part way through hearings is not perhaps immediately obvious
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