1. Employment Tribunal fees are payable by virtue of The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The hearing fee stated by the Employment Tribunal was the correct fee for a Type B claim of the kind which the Claimant had made: see Schedule 2, Table 3. Article 4(1)(a) of the Fees Order makes provision for a fee, the hearing fee, to be payable "on a date specified in a notice accompanying the notification of the listing of a final hearing of the claim". In this case the notice was on 7 October and provided for the fee to be payable in seven days. I am told that this is the standard time to be given.

1. As to payment of fees the applicable Rule is Rule 40 of the Employment Tribunal Rules 2013, which are to be found in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. So far as applicable, Rule 40 provides as follows:

"40. Non-payment of fees

(1) … where a party has not paid a relevant Tribunal fee or presented a remission application in respect of that fee the Tribunal will send the party a notice specifying a date for payment of the Tribunal fee or presentation of a remission application.

(2) If at the date specified in a notice sent under paragraph (1) the party has not paid the Tribunal fee and no remission application in respect of that fee has been presented -

(a) where the Tribunal fee is payable in relation to a claim, the claim shall be dismissed without further order;

…

(5) In the event of a dismissal under paragraph (2) or (4) a party may apply for the claim or response, or part of it, which was dismissed to be reinstated and the Tribunal may order a reinstatement. A reinstatement shall be effective only if the Tribunal fee is paid, or a remission application is presented and accepted, by the date specified in the order."

1. Rule 40(5) does not set out any test by reference to which an Employment Judge may order reinstatement. However, Rule 2 provides that an Employment Tribunal should seek to give effect to the overriding objective in exercising any power given to it by the Rules. Rule 2 provides as follows:

"2. Overriding objective

The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable -

(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.

A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal."

1. As to the giving of reasons Rule 62 of the Employment Tribunal Rules, so far as applicable, provides as follows:

"62. Reasons

(1) The Tribunal shall give reasons for its decision on any disputed issue, whether substantive or procedural (including any decision on an application for reconsideration or for orders for costs, preparation time or wasted costs).

(2) In the case of a decision given in writing the reasons shall also be given in writing. In the case of a decision announced at a hearing the reasons may be given orally at the hearing or reserved to be given in writing later (which may, but need not, be as part of the written record of the decision). Written reasons shall be signed by the Employment Judge.

(3) Where reasons have been given orally, the Employment Judge shall announce that written reasons will not be provided unless they are asked for by any party at the hearing itself or by a written request presented by any party within 14 days of the sending of the written record of the decision. The written record of the decision shall repeat that information. If no such request is received, the Tribunal shall provide written reasons only if requested to do so by the Employment Appeal Tribunal or a court.

(4) The reasons given for any decision shall be proportionate to the significance of the issue and for decisions other than judgments may be very short.

(5) In the case of a judgment the reasons shall: identify the issues which the Tribunal has determined, state the findings of fact made in relation to those issues, concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues. Where the judgment includes a financial award the reasons shall identify, by means of a table or otherwise, how the amount to be paid has been calculated."

1. As I have said Rule 40(5) does not set out any criterion by reference to which an Employment Tribunal may order reinstatement. The criterion is, in my judgment, supplied by Rule 2(2) and by the overriding objective, which is to deal with a case justly and fairly. The specific considerations listed in Rule 2 are tailored more to case management issues than to the question of reinstatement after failure to pay a fee or submit an application for remission. But they contain important references to proportionality and the avoidance of delay.

1. Rule 40(5) is a specific form of relief from sanction. The sanction is not imposed to ensure good case management or a fair hearing, as is generally the case. Rather, it is imposed to ensure that litigants, usually Claimants, meet their statutory obligations to pay fees. Nevertheless I consider that some guidance can be obtained from cases concerned with relief from sanction in Employment Tribunal proceedings.

1. In Neary v Governing Body of St Albans Girls School [2010] ICR 473 an Employment Judge had disposed of an application for relief against sanction in a few crisp sentences. The Court of Appeal upheld his decision while saying that it would have been sensible for the Employment Judge to have acceded to the request for further Written Reasons. The Court of Appeal, in particular, rejected the argument that a checklist then to be found in Rule 3.9 of the Civil Procedure Rules ("CPR") had to serve as the basis of the Employment Judge's reasoning. Janet Smith LJ said:

"52. I do not consider that the same detailed requirements are to be expected of an employment judge considering an application for a review of a sanction. Of course, the judge must consider all the relevant factors and must avoid considering any irrelevant ones. He might well find the list in CPR r 3.9(1) to be a helpful checklist, although he would be well advised to remember that, in the instant case, that list might not cover everything relevant. But he is not under any duty expressly to set out his views on every one of those factors. His decision must comply with the basic requirements as set out in English v Emery Reimbold & Strick [2002] 1 WLR 2409. Litigants are entitled to know why they have won or lost and appellate courts must be able to see whether or not the judge has erred. In a case of this kind, it seems to me that the basic requirements are that the judge must make clear the facts that he has regarded as relevant. He must say enough for the reason for his decision to be understood by a person who knows the background. In a case where the draconian sanction of strike-out has been imposed, it will be necessary for the judge to demonstrate that he has weighed the factors affecting proportionality and reached a tenable decision about it. That does not mean that he must use any particular form of words. Any requirement for a particular form of words leads readily to the adoption of them as a mantra. But it must be possible to see that the judge has asked himself whether in the circumstances the sanction had been just."

1. In Thind v Salvesen Logistics UKEAT/0487/09/DA Underhill J at paragraph 13 summarised the position as follows:

"13. The Claimant's original Notice of Appeal, and a subsequent amended version lodged once the Tribunal's Reasons had been received, relied to a considerable extent on the line of authorities which begins with the decision of this Tribunal in Maresca v Motor Insurance Repair Research Centre [2005] ICR 197: these hold that a tribunal considering an application for relief following the activation of an unless order must have regard to the provisions of rule 3.9 of the Civil Procedure Rules. Those grounds have now been undercut by the recent decision of the Court of Appeal in Governing Body of St Albans Girls' School v Neary [2009] EWCA Civ 1190, which has over-ruled Maresca and the cases which followed it and has made it clear that there is no obligation in law on an employment tribunal to proceed by reference to CPR 3.9.

1. In my judgment this general approach is helpful. It indicates factors which an Employment Judge should take into account. I would, however make one observation. It is important not to treat a Tribunal's warning letter under Rule 40 as equivalent to an unless order. An unless order follows breach of an existing order of the Employment Tribunal. Failure to comply with an unless order therefore generally involves a failure to comply with two specific Tribunal orders. These are matters of considerable weight in any balancing exercise. In a case under Rule 40 there may be no breach of any existing order. The deadlines given, both in a notice to pay and in a Rule 40 warning letter, are short. While the Rule 40 letter is a trigger to the operation of dismissal under Rule 40, failure to comply with it does not carry the same degree of weight as failure to comply with an unless order.

1. The approach of an appellate court is also established by Neary. Janet Smith LJ said:

"49. It is often said that decisions of this kind are discretionary. It seems to me that a decision such as this is not so much an exercise of discretion as an exercise of judgment. But this may be a distinction without a difference in that, in both cases, there is a duty on the judge to decide the case rationally and not capriciously and to make his decision in accordance with the purpose of the relevant legislation, taking all relevant factors or circumstances into account. He must also avoid taking irrelevant factors into account. In both cases there may be two correct answers or at least two answers which are not so incorrect that they can be impugned on appeal. Whereas with the exercise of discretion, the question will be whether the judge's decision was permissible on the evidence, with an exercise of judgment the question will be whether his decision was fair. But provided that the judge has met these requirements, his judgment should not be impugned merely because the appellate court would or might have reached a different conclusion."

1. Applying these principles, I have reached the conclusion that the Employment Judge's Reasons, short though they are, meet the requirements of the law and are free from perversity or any legal error.

1. In the first place, there is no doubt that the Employment Judge did, in the words of Janet Smith LJ, ask herself whether the imposition of the sanction was just. She expressly stated that it would not be in the interest of justice to reinstate the claim. Accordingly she demonstrated that she had the correct legal test in mind.

1. Secondly, it is important to keep in mind that the grounds put forward in support of the application for reinstatement were extremely brief. I have quoted them already. To my mind the Employment Judge dealt with them. She did not accept that the Claimant's representative was in hospital or otherwise unable to deal with the matter. She was fully entitled to reach this conclusion. Indeed it seems plain today, having regard to material which I have seen in support of the application to adduce further evidence, that the Claimant's representative was not in hospital at any material time. The Employment Judge gave her essential reasons for reaching the conclusion she did, noting that the Claimant's representative had corresponded with the Employment Tribunal and with the Respondent. She might have elaborated on that conclusion. For example, she might have set out something of the nature of the correspondence and she might have added that the Claimant's representative had never mentioned any illness of his own. However, this elaboration was not essential. To my mind she addressed the key point which had been made in support of the Claimant's application and gave reasons why she did not accept it.

1. The Employment Judge also made the point that the Claimant's representative had not actively pursued the case. It is clear what she meant. By the time of her decision the deadline for service of a witness statement on the Claimant's behalf had passed, and no statement had been served despite an extension of time. The Claimant must have been well aware that she had served no witness statement. This did not need to be spelled out in the reasons.

1. Today it is said that the Claimant's representative was effectively housebound and unable to go to his office to collect correspondence. The Employment Judge cannot be faulted for failing to deal with this point. It was not made to her.

1. It would, I think, have been better if the Employment Judge had spelled out more fully why it was not in the interests of justice to grant the application just as it would have been good practice if the reasons had been fuller in the case of Neary. But to my mind the essentials are there. The Employment Judge considered where the interests of justice lay and addressed the specific grounds on which the application for reinstatement was made. To my mind the reasons are sufficient and the conclusion cannot possibly be described as perverse.

1. I turn, then, to the application to adduce fresh evidence. I refuse it for the following reasons. Firstly, once granted that there is no error of law in the Employment Judge's Reasons, the application is effectively a freestanding application unrelated to any question of law. The Employment Appeal Tribunal is vested only with jurisdiction to address questions of law. Any freestanding application to adduce further evidence ought to be made to the Employment Tribunal. Indeed, albeit out of time, such an application was made to the Employment Tribunal in this case.

1. Secondly, I am unconvinced that the material could not have been available with reasonable diligence when the application for reinstatement was made. According to Mr Khanna's witness statement, it was he who set in motion the application. I see no reason why he should not have been able to make the central point, if it was correct, that he never saw the notices because he did not attend his office. Indeed, I see no reason why he should not have given a statement at the time. Mr Khanna has now given a statement - and he is still, according to certificates provided with that statement, unfit for work. On the material I have I remain unconvinced that his statement could not, with reasonable diligence, have been provided before the application was made.

1. I would also say that I am by no means satisfied that his statement would have made any important difference to the decision. Although he says that he was unable to attend his office, all that was required for the fee application to be dealt with was an email to his client and possibly an arrangement for someone at his office to forward the relevant letter. Anyone versed in Employment Tribunal proceedings would have known that the fee notice had arrived with the Notice of Hearing and the Respondent's email had alerted Mr Khanna to the position.

1. Accordingly, while I reject the application to adduce fresh evidence on the basis that it is inappropriate as a freestanding application before Employment Appeal Tribunal, I would in any event have rejected it, applying Ladd v Marshall criteria.

1. Finally, I should deal with Mr Lloyd-Eley's application for leave to amend the Notice of Appeal to appeal against the later reconsideration decision. This was the logic of the way Mr Lloyd-Eley was putting his case in reply, and I drew out the application for permission to amend from him. In truth, however, it is bound to fail. Firstly, it is made far too late in terms of the hearing of this appeal. It would effectively require an adjournment and a further opportunity for the parties to make submissions. The overriding objective applicable to the Employment Appeal Tribunal points very strongly against it. Secondly, quite apart from any question of lateness, it is the general practice of the Employment Appeal Tribunal to require a fresh Notice of Appeal against a reconsideration decision. I see no reason why that practice should not be adopted in this case.

1. For those reasons the appeal will be dismissed and the oral application for leave to amend will also be dismissed.