Appeal No. UKEAT/0173/09/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 May 2009

Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE)

HCA INTERNATIONAL LTD	APPELLANT

MS J L MAY-BHEEMUL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR B M BEYZADE
(Representative)
HCA International Ltd 
Legal Dept
242 Marylebone Road
London NW1 6JL.	
For the Respondent	Written representations	

SUMMARY
PRACTICE AND PROCEDURE:  Postponement or stay / Service
General stay of Employment Tribunal proceedings;  Employment Tribunal Rules 11 & 12 – application for order “ex parte”; Employment Tribunal intention not to serve order on other party.  Third Party confidentiality and possible P.1.1. Joinder of Third Party.  Right to have application for original application to be revoked heard.

Appeal allowed; matter remitted for revocation application to be heard.

HIS HONOUR JUDGE PETER CLARK
1.	This case is presently proceeding in the London Central Employment Tribunal.  The parties, as I shall describe them, are Ms May-Bheemul, Claimant, and HCA International Limited, Respondent.  This appeal by the Respondent raises unusual procedural questions involving outside agencies, in particular the Metropolitan Police Service.

Background
2.	The Respondent carries on the business of supplying healthcare services.  Among other activities it engages bank and agency staff to work in that field.

3.	The Claimant commenced her employment with the Respondent on 31 August 2004 as a weekly payroll administrator.  From 12 March 2007 she held the post of Finance Co‑ordinator for the Temporary Staffing Services Department until her resignation from the employment on 17 January 2008.

4.	Following her resignation she presented a complaint of unfair dismissal and disability discrimination to the Tribunal on 15 April 2008.  The claim under the Disability Discrimination Act 1995 was struck out at a Pre-Hearing Review.  Her extant unfair dismissal claim is based on constructive dismissal by reason of her having made protected disclosures, that is automatically unfair constructive dismissal contrary to Section 103A of the Employment Rights Act 1996.

5.	It is the nature of her case, particularised in her claim form ET1, that her login and password issued to her by the Respondent was misused by others for the purposes of fraudulent activity.  The Respondent denies that any such fraudulent activity has taken place.

6.	The unfair dismissal claim was listed and came on for substantive hearing over 10 days before an Employment Tribunal chaired by Employment Judge Carstairs commencing on 23 September 2008.  On the second day of that hearing the Claimant was unable to continue giving evidence during cross-examination, the Respondent tells me, about a document central to her claims, and that hearing was adjourned, the Tribunal ordering that further psychiatric reports on the Claimant be obtained.  The case was then re-listed for the resumed hearing before the Carstairs Tribunal, the case being part-heard, between 11 and 20 March 2009.

7.	Unhappily, I see from the comments made by the Acting Regional Employment Judge (REJ) Miss E J Potter, in response to my invitation to provide her comments on the matters raised in the Notice of Appeal and Answer by the Claimant dated 29 April 2009, Judge Carstairs suffered a heart attack in January 2009 and presently remains on sick leave.

8.	Staying with the chronology on 10 February 2009 the Claimant’s solicitors, Foot Anstey, wrote to the Tribunal.  I have seen a copy of that letter but do not propose to record its contents in this Judgment for reasons which will appear later.  That letter enclosed a copy letter from the Metropolitan Police Service dated 4 February 2009.

9.	The solicitor’s letter of 10 February 2009 was referred to Employment Judge Lewzey,  who gave the following direction in a letter dated 23 February,

“Permission is granted by the Employment Judge solely for Miss Bheemul to comply with the requirements of the letter from Metropolitan Police Service at the first and second bullet points only of their letter dated 4 February 2009.”

10.	Again, I understand from the REJ’s letter of 29 April that Judge Lewzey intended her direction of 23 February to go to the Claimant’s solicitor only and not to the Respondent’s legal department.  However, due to what is described as an ‘administrative error’ a copy of Judge Lewzey’s letter was also sent to the Respondent’s representative, Mr Beyzade, by email at 11.32am that day.  At 12.21pm the same day a member of the Tribunal’s staff, Miss Alahendra, sent a further email to Mr Beyzade in these terms,

“Please ignore the letter Tribunal’s (sic) (addressed to the Claimant’s representative) I emailed to you today, as it was copied to you in error.  I apologise on behalf of the Tribunal for any inconvenience caused by this error.” 

11.	However, the cat was now out of the bag.  My Beyzade responded promptly by fax the same day.  He applied for Judge Lewzey’s order to be revoked on the basis that the Claimant’s solicitor had not complied with Rule 11 of the Employment Tribunal Rules 2004.  Rule 11(4) provides that applications to the Employment Tribunal must be made on notice to the opposing party.  On this occasion the Claimant’s solicitor had not served notice of application on the Respondent, who had not seen the letter to the Tribunal of 10 February, nor the enclosed letter of 4 February from the Metropolitan Police Service before the Order was made and still, to this day, has not seen that correspondence.

12.	The Respondent’s application for revocation of Judge Lewzey’s order has not been determined.  On 24 February the REJ wrote to the parties about the adjourned substantive hearing before the Carstairs Tribunal, fixed to resume on 11 March.  She pointed out that Judge Carstairs was then on sick leave and it had become clear that he would not be fit for the hearing on 11 March.  The prognosis was unknown.  Therefore, she felt that she had no option but to vacate the March hearing dates.  The situation was to be reviewed on 11 June in liaison with the parties.  Inconvenience to the parties was regretted.

13.	Pausing there, I read that letter as a direction that the substantive hearing was to be postponed and the position to be reviewed on 11 June.  There was no general stay of proceedings then ordered.

14.	On 26 February 2009 the REJ instructed G Jones, a member of the Tribunal staff, to write to the parties in these terms,

“Consequent on the terms of the Tribunal’s letter dated 24 February 2009 the case is to be stayed generally until 11 June 2009.  Therefore, no steps will be taken in the proceedings during this period.”

15.	As to what may have prompted that further general stay direction from the REJ, I quote from an email sent by Mr Beyzade to the Tribunal on 6 March,

“For the attention of the REJ,
I write further to my letter to the Regional Secretary of the Employment Tribunal dated 23 February 2009.  I should be grateful if you would refer this email to Acting Regional Judge Miss Potter today.
In my letter dated 23 February 2009 I made an application for the Order of the Tribunal dated 23 February 2009 to be revoked.  I was advised by Gary Jones from the Employment Tribunal Office today that this letter was referred to you (the REJ) on 24 February 2009 and returned with your comments on 25 February 2009.  I was also advised that the letter dated 26 February 2009 from the Employment Tribunal was in response to my letter dated 23 February 2009.  I note that the letter dated 26 February 2009 does not refer to my letter dated 23 February 2009 and does not deal with the application in my letter dated 23 February 2009.
I am concerned that we have not been sent a copy of the application sent to the Employment Tribunal dated 10 February 2009 or the letter from the Metropolitan Police dated 4 February 2009 and that as a result we have not been given an opportunity to respond to the application made by the Claimant.  We are deeply concerned at this approach as it is normal practice to ask for each party’s input.
It is important that the application made in my letter dated 23 February 2009 is determined as a matter of urgency as the Claimant has already been given permission by the Tribunal to discuss her evidence with the police and if the Order is to be revoked in June 2009 it may have no effect.  In the event that the application is rejected, I should be grateful if you would confirm the reasons for your decision.”

16.	The response from the REJ dated 9 March 2009 said this,

“The Respondent’s email of 6 March is acknowledged.
The Tribunal’s letters of 24th and 26th February make clear that the proceedings are stayed.  No steps whatsoever will be taken by the Tribunal during this stay; no applications will be considered; the proceedings are frozen.
Any outstanding applications then appropriate will be considered once the stay is lifted.”

If is that direction which is said to be the subject matter of the Respondent’s appeal now before me according to paragraph three of the Notice of Appeal.  

17.	The Notice of Appeal was lodged on 27 March.  It came before HHJ Serota QC on the paper sift.  He directed that it should be set down for a Full Hearing.  Expedition was recommended.

18.	The Claimant lodged an Answer on 24 April strictly outside the seven day time limit order by Judge Serota on 16 April.  The Registrar granted an extension of time for filing the Answer but referred to me, as the Judge assigned to the hearing of this appeal, an application by the Claimant in her Answer that the Employment Appeal Tribunal obtain the file of the Employment Tribunal in order to make a decision in relation to matters which her solicitors were unable to disclose to the Appellant.  I dealt with that application by seeking the REJ’s comments, hence her letter of 29 April which, I have ascertained, she was content to be copied to the parties and that has been done.

19.	Having seen the Claimant’s Answer the Respondent then applied to the Employment Appeal Tribunal on 29 April for permission to amend the Notice of Appeal.  That application was considered by the Registrar, who refused it by letter dated 30 April having taking into consideration submissions made on behalf of the Claimant.  In doing so she referred to the Judgment of Judge Serota in Khudados v Leggate [2005] IRLR 540 and the lateness of the application.  Against that Order the Respondent now appeals to me.

The Registrar’s Appeal
20.	Dealing first with the appeal against the Registrar’s Order, I take into account the Claimant’s solicitors representations opposing the amendment application dated 29 April.  Today, the Claimant does not appear and is not represented, her solicitors being content to rely on the Answer by way of written representations to be considered at this hearing.  Mr Beyzade has appeared before me on behalf of the Respondent.

21.	The amendments sought are twofold.  The first, at paragraph 7(vi) of the Notice, makes an alternative submission, that if, as the Claimant contends in her Answer, her solicitor’s letter of 10 February was not an application under Rule 11 and Employment Judge Lewzey made her Order of 23 February on her own initiative under Rule 12, then the Tribunal failed to follow Rule 12(2) which provides as follows, 

“Where an Employment Judge makes an Order without giving the parties an opportunity to make representations,
(a) the secretary must send to the party affected by such Order a copy of the Order and a statement explaining the right to make an application under sub-paragraph 2B and,
(b) a party affected by the Order may apply to have it varied or revoked.”

22.	Secondly, at paragraph 9, the EAT is invited to order the Employment Tribunal to consider the Respondent’s further application dated 2 March.  I have now been provided with a copy of that application made to the Employment Tribunal by Mr Beyzade on behalf of the Respondent.  It is in two parts: first there is an application that a Pre-Hearing Review (PHR) be held to consider striking out the Claimant’s claim or alternatively making a deposit order under Rule 20; and secondly, an application that the case be re-listed on the issue of liability only.

23.	I accept that the paragraph 7(vi) amendment arises directly from the Claimant’s Answer and that relates to information which has been thus far withheld from the Respondent.  The Respondent has not seen the letter from the Claimant’s solicitors dated 10 February.  Plainly that amendment must, in the unusual circumstances of this case, be allowed and I allow the Respondent’s appeal against that part of the Registrar’s Order.

24.	The paragraph 9 amendment, however, raises a matter which could and should have been pleaded in the original Notice of Appeal.  It is not a point dependent on the contents of the Claimant’s Answer, and further, it seems to me, that it is not an application which could not be heard by the Carstairs Tribunal whereas I accept that the Claimant’s application of 10 February was more properly dealt with by a different Employment Judge.  In these circumstances I shall not permit the amendment under paragraph 9 and I affirm the Registrar’s Order in this respect, although I shall later in this Judgment return to the question of that particular application.

The Substantive Appeal
25.	I begin with Judge Lewzey’s Order of 23 February.  On a strict application of the Rules, either the Claimant’s solicitor’s letter of 10 February was an application by the Claimant under Rule 11, in which case Mr Beyzade is correct in submitting that the Claimant did not comply with Rule 11(4).  That is common ground and requires that details of the application be served on the other party.  Alternatively if, as the Claimant contends in her Answer, Judge Lewzey made the Order on her own initiative under Rule 12, at the instigation of the Claimant, in that case Rule 12(2) operates.

26.	Analysing the provisions of Rule 12(2), where an Employment Judge makes an Order without giving the parties the opportunity to make representations (in fact representations were made here by the Claimant but not by the Respondent who was in ignorance of the matter) (a) the Secretary must send the party affected a copy of the order and a statement explaining the right to make an application under sub-paragraph 2(f), which in turn provides that the party affected by the Order may apply to have it varied or revoked.

27.	Pausing there, Judge Lewzey did not specify in the letter of 23 February under which rule she was making her Order.  Secondly, it was not intended that the order should, as is the normal practice, be served on the Respondent; no notice was to be given of the Order.  In the event, due to what is described as an administrative error, a copy was served on the Respondent, immediately followed by an email from a member of the Tribunal staff, asking the Respondent to ignore it.  Then, when the Respondent’s application to have the order set aside was referred to the REJ she responded by ordering a blanket stay on the proceedings, thereby preventing the Respondent from having its application determined.

28.	Thus far I entirely agree with Mr Beyzade that the Tribunal has signally failed to apply the Rules of Procedure by which it is bound.  However, the circumstances are unusual.

29.	The proper course to have followed would, in my judgment, be as follows

(1) Whilst it is appropriate to stay the proceedings so far as the substantive hearing before the Carstairs Tribunal and any interim application which must be dealt with by that Tribunal or Judge Carstairs alone, with a review on 11 June, that stay is inappropriate for an application, such as that of the 23 February by the Respondent, which need not and indeed should not be determined by the Carstairs Tribunal.

The application of 2 March falls somewhere between those two extreme positions.  It will be a matter for the REJ, in the light of this Judgment, to determine whether or not the stay is to continue in relation to the strike out application of 2 March, that matter to be dealt with by the Carstairs Tribunal, or whether it should be determined by the Employment Judge who is to hear the revocation application by the Respondent in relation to the 23 February Order.

(2) Accordingly the stay must be lifted in my view to the extent that the Respondent’s application of 23 February for revocation of the Lewzey order of that date be heard.  It is ultimately a matter for the REJ, but I see no reason why Employment Judge Lewzey should not hear the Respondent’s application to revoke her Order.

(3) Due to the sensitive nature of this particular matter, consideration should be given to the following case management questions:

(a)	The Metropolitan Police Service, in my view, ought to be joined to the Employment Tribunal proceedings under Rule 10(2)(r) or, at any rate, given the opportunity to make representations?
(b)	Ought the hearing of the Respondent’s revocation application to be heard wholly or partly in private, see Rule 16, and ought the Respondent to be excluded from any part of the hearing exercising the powers under Rule 60 (1) of the ET Rules?
(c)	In determining what information should be made available to the Respondent, should the principles of Public Interest Immunity be applied?  I anticipate that the Metropolitan Police Service may wish to make submissions on this aspect of the matter.

Disposal
30.	The appeal is allowed; the stay imposed by the REJ is lifted so far as the Respondent’s revocation application is concerned; that application shall be heard and determined in accordance with the principles outlined above.

31.	In reaching these conclusions I have considered Mr Beyzade’s submission that I should determine, first, the question as to whether the letters of 4 and 10 February should be disclosed to the Respondent, and secondly, determine the question as to whether or not Judge Lewzey’s Order of 23 February should be revoked.  I am not content to exercise my powers under Section 35(1) of the Employment Tribunals Act 1996 in order to answer those questions on appeal.  In particular I think it important that the Metropolitan Police Service should be given the opportunity to make any submissions which they think are appropriate on the disclosure issue and on the revocation issue.  It may be that events have overtaken this particular application.

32.	Mr Beyzade tells me that he has been in touch with a DC Parr at Chingford Police Station as recently as 28 April and that officer indicated to him that the Claimant was required to provide a witness statement to police.  Mr Beyzade also tells me in relation to the comment which he made in his email to the Employment Tribunal of 6 March that he inferred or assumed that the Claimant had already been given permission by the Tribunal to discuss her evidence with the police.  If that assumption be correct then the issue for the Employment Judge, and I think it should be an Employment Judge rather than this Tribunal, is whether it is right that the Claimant should be discharged from her oath in order to give a witness statement to the police.

33.	One further matter arose during the course of argument this morning and that is whether it would be appropriate, bearing in mind Judge Carstairs’ ill health, for the hearing, which was only just into its second day before the Carstairs Tribunal, to be aborted and the matter in due course to be re-listed before a fresh Tribunal.  That is a matter for the Regional Employment Judge to consider.  I raise it because if that hearing was aborted then the Claimant would no longer be under oath and the problem, which has bought about this appeal, would be resolved.

34.	Following my Judgment in this appeal Mr Beyzade made application to me for a stay of Judge Lewzey’s Order of 23 February.  I accede to that application exercising, my powers under Section 35(1) Employment Tribunals Act 1996, so that insofar as no action has to date been taken in line with that Order, no further action should be taken until after the determination of the Respondent’s application for revocation of that Order.

35.	I direct that there should be a transcript of this Judgment and that it should be expedited.

36.	Mr Beyzade finally makes an application for costs in the appeal.  He submits that the only reason that this matter has been brought before the EAT is because the Claimant did not make a proper application in accordance with Rule 11(4) of the ET Rules below.  That application for costs is misconceived.  The question is whether the Claimant has acted unreasonably or otherwise in accordance with the EAT Costs Rule in defending this appeal.  She has not.  She has simply sought to rely on the decision of the REJ which was under appeal.

37.	In any event, I am satisfied that if the Claimant’s solicitor’s letter of 10 February is properly to be construed as an application under Rule 11, there were good reasons why the Claimant’s solicitor did not give the information required under sub-rule 4.  For these reasons I shall dismiss the application for costs in the appeal.