The claimant won his case in the Employment Tribunal. The respondent did not enter a response or attend the hearing, believing that the claimant was not an employee and so had no case. The respondent appealed against the judgment which was rejected on the basis that the respondent had failed to enter a response and so was not entitled to take part in the proceedings, and the EJ was entitled to decide the case on the evidence before him. This appeal was not pursued, but a review was sought, out of time, which was rejected; the Judge said that it would not be just and equitable to extend time to correct an error on the part of the respondent which was entirely of his own making. The respondent appealed, saying that the Judge had not performed a balancing act and should have exercised his discretion to allow the review.

The EAT dismissed the appeal, saying that the employer had not taken the matter seriously and that the refusal to review the matter could not be considered capricious. It was also by no means clear that the employer had an arguable case that the claimant was not an employee.

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Appeal No. UKEAT/0015/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27 October 2010

Before

HIS HONOUR JUDGE PUGSLEY (SITTING ALONE)

EURO EARTH WORKS LTD (APPELLANTS)

MR R P ROBINSON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellants
No appearance or representation by or on behalf of the Appellants

For the Respondent
MS JANE RUSSEL (of Counsel)

Instructed by:
Messrs Addison Oliver Moore Solicitors LLP
Parade House
135 The Parade
High Street
Watford
WD17 1NA

**SUMMARY**

PRACTICE AND PROCEDURE – Review

The Appellants were in administration at the time of the hearing. Although we had a skeleton argument from counsel there was no appearance by the Appellants. The Appellants – the employers – failed to enter an appearance. Their attempt to appeal on the basis that they misunderstood correspondence was turned down by HHJ Peter Clark. They did not appeal that. Their application for review was eight weeks after time. Appeal was on the basis the Employment Tribunal Chairman not doing a balancing act and should have exercised discretion to allow the review. The appeal was dismissed.

**HIS HONOUR JUDGE PUGSLEY
**1. This is a case in which the Appellants have, we are told, gone into administration. I am grateful to the efficiency of the court staff and the Respondent's solicitors and it would seem that it was a voluntary administration. It seems from the conversation I have been given by a very experienced court clerk that the Appellants' solicitor said they are not attending and not pursuing the matter. It is their appeal. I do not think it would be right to view that as a withdrawal but I am bound to say in all the circumstance in the case I can see no point in putting this back. The Appellants are not attending. They have had the opportunity to attend and counsel was briefed. I have Ms Emma Sole's skeleton argument, dated 8 October, which sets out the grounds of this appeal.

1. This case was heard at the Employment Tribunal by Employment Judge John Macinnes, who gave a decision that the Claimant, Mr Robinson, was dismissed. He made an award of £40,878.50. The employer had not entered a response and did not appear at the Tribunal.

1. Reasons were sought for the decision and the reasons which were given were in fairly skeletal form. An appeal was mounted against those reasons and that came before HHJ Peter Clark, a most experienced judge, and he declined to allow the appeal in a letter dated 16 June 2009. He said the Applicant's reason for not entering a response was unacceptable "A threat of strike out of the sex discrimination claim does not affect the Claimant's unfair dismissal claims as to which purported defence is that the Claimant was not an employee. Having failed to enter a response in these circumstances the Appellant is not entitled to take part in the proceedings. The Employment Judge decided the case permissibly on the evidence before him."

1. That was not pursued to a rule 3(10) hearing on that matter. A review was sought and in the review, Employment Judge Macinnes said he had no jurisdiction to consider the application because he said the Respondent had only sought legal advice on 22 June, which was some days after they had been informed by the EAT that their appeal had no reasonable prospects of success and it was eight weeks after the expiry date of the 14-day period under rule 35(1). The learned judge did not consider it just and equitable to extend the time under rule 35(1). At paragraph 7 the learned judge said:

"I do not consider that to be a ground upon which I can exercise my discretion to extend time. There must be finality in litigation. The terms of my judgment were clear. It was the Respondent's decision not to seek advice. Notwithstanding the clarity of the judgment and the sums involved. That was the Respondent's decision. It turns out to be an error. I do not consider this just and equitable to extend time to correct an error on the part of the Respondent which was entirely of his own making."

1. I have considered the careful and comprehensive skeleton argument of Ms Sole on behalf of the Appellants. In essence the thrust of that argument is that tribunals should adopt as flexible an approach as possible in mitigating the injustice caused by complex and rigid rules. There is a plethora of authority which can be cited for that proposition. An over zealous application of procedural rules would defeat the very purpose of any legal system. However to allow litigants to ignore time limits and not to engage with the case is equally unfair.

1. Ms Russell on behalf of the Claimant has identified that there were some six occasions in which the Tribunal copied a letter to the employers. Bearing in mind that the employers had not made any attempt to contact the Tribunal or the Claimant or to attend the Tribunal hearing, I do not consider it can be said to be capricious to refuse the application for a review which was made eight weeks after the time limit. We are not talking about some technical failure to observe a time limit. Here the Tribunal gave a brief decision. Legal proceedings are a stress and strain to everyone, including the Claimant who brings this claim. The employer made no attempt to take this matter seriously.

1. In those circumstances I do not consider that it can be said that refusing to review the matter was capricious. I find no reasons to say that was any other than the exercise of the judge's discretion which he properly exercised and it would be wrong for this court to intervene. The issue as to whether a Claimant is an employee is one that is familiar to tribunals. This requires a tribunal to make a judgment in which not only is documentation relevant but in which evidence of the actual relationship must be considered (see RSA Consulting v Evans. It is by no means clear that the employer had an arguable case. This appeal is dismissed.