After the conclusion of an oral hearing in a claim for unfair dismissal, the ET directed that the parties lodge written submissions. The claimant prepared submissions and served them on the respondent but because of some mishap they were not sent to the ET. The meeting in chambers was adjourned twice for various reasons and the meeting did not take place until 5 months after the conclusion of the hearing. The ET appreciated for the first time that the claimant had not lodged submissions, but went ahead to consider its decision on the basis of the respondent's submissions alone. It did not consider making enquiries as to why there were no submissions from the claimant and went on to dismiss the claim. The claimant appealed.

The EAT upheld the appeal. The ET should have at least considered whether to make a telephone call to enquire as to the reason. There needed to be a 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 claimant had demonstrated that there was a real possibility that consideration of the submissions may have led to a different result and the decision to proceed had led to a breach of natural justice.

Appeal No. UKEAT/0422/11/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 16 January 2012

Before

HIS HONOUR JUDGE SEROTA QC, MR R LYONS, MR T MOTTURE

MRS V QUASHIE (APPELLANT)

METHODIST HOMES HOUSING ASSOCIATION (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MICHAEL REED (Representative)

Free Representation Unit
289-293 High Holborn
London
WC1V 7HZ

For the Respondent
MR C CROW (of Counsel)

Instructed by:
Messrs Anthony Collins Solicitors
134 Edmund Street
Birmingham
B3 2ES

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 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.

1. This is an appeal from a decision of the Employment Tribunal sitting at London South before Employment Judge Salter, who sat with lay members. The decision was sent to the parties on 21 June 2010. The Employment Tribunal dismissed the Claimant's claim for unfair dismissal. The Claimant was a care assistant in a care home. She was dismissed after what we would say neutrally was a scuffle with a fellow employee, for which the Respondent evidently considered the Claimant was responsible. The Respondent has sought to persuade us to look in some detail at the factual background to the case, but it is in our opinion not appropriate to do so, for reasons that will become apparent. A Burns/Barke order was made by Slade J on 5 May 2011.

1. Before the Employment Tribunal both parties were represented; the Claimant was represented by a trainee solicitor under the aegis of the Free Representation Unit, and the Respondent was represented by a solicitor. The hearing took place on 7 and 8 December 2009. On 8 December the Employment Tribunal adjourned to consider its Judgment. It was agreed between the parties and with the Tribunal that written submissions should be lodged within 14 days. The Respondent's submissions were before the Employment Tribunal; they are dated 22 December 2009. The trainee solicitor who appeared on behalf of the Claimant, Ms Blair, has said, and we gather this from the Claimant's written submissions, that Ms Blair asserts she sent a faxed copy of the Claimant's final submissions to the Employment Tribunal on 21 December. Those submissions are detailed; they cover 15 pages and run to 83 paragraphs. We have approached this case, however, on the basis that these submissions were not sent to the Employment Tribunal, for reasons that we will come to shortly. Mr Crow, who appears on behalf of the Respondent, has, however, corrected his initial skeleton argument and conceded that at the relevant time the Claimant did send in due time a copy of the submissions to the Respondent's solicitor, which was received.

1. After the Employment Tribunal adjourned the parties were written to and informed that the chambers meeting of the members of the Employment Tribunal would take place on 8 January. On 8 January, by reason of snow, one of the lay members was unable to attend, and the hearing had to be adjourned. The parties were informed of this and they were informed that the chambers meeting would take place on 5 March. Unfortunately on 5 March the hearing had to be adjourned again because the Employment Judge had to attend a family funeral. The parties were informed, and the Employment Judge had the courtesy to write to apologise to the parties. The Tribunal did not meet until 21 May 2010, about five months from the close of the hearing.

1. The Employment Tribunal then said for the first time it had been discovered that there were no submissions before it from the Claimant, though, as we have said, the Respondent's submissions were available but we must assume were not sent to the Tribunal by reason of some mishap. The Employment Tribunal did not seek to ascertain whether or not the Claimant's representative had ever sent submissions to the Employment Tribunal, nor did it, in our opinion, consider doing so. The Employment Tribunal, and we will come on to this in detail shortly, considered that because of the delay that had occurred and because the parties' arguments were clear to the Employment Tribunal members, it had concluded that the Claimant did not intend to lodge submissions and it decided it was more important to decide the case than establish why the Claimant had decided not to make submissions. One asks forensically, if the Employment Tribunal had clearly understood the parties' submissions, why did the Employment Tribunal ask the parties to lodge written submissions?

1. The Employment Tribunal then went on to decide the case having considered only the Respondent's written submissions. It is apparent from the decision that the Employment Tribunal proceeded on a false basis, namely that the Claimant did not intend to make submissions. It is difficult to understand with the history that we have recounted why it had not been appreciated prior to 21 May that the written submissions directed by the Employment Tribunal from the Claimant had not been received. After all, this was a case in which the case had been fought with representation from both sides over two days, and no indication had been given by the Claimant's representatives that they did not intend to further engage with the proceedings. For example, on 8 January 2010, when the lay member had been prevented by snow from attending, I would have expected the Employment Judge to have seen from the file that there were no submissions on the file from the Claimant. We were told, however, that it is usual in the Employment Tribunal for the Employment Judge and lay members not to have considered the file before the hearing.

1. We draw attention to what the Employment Tribunal had to say about its decision not to make enquiries in relation to the missing submissions both in its decision and also in a response to a Burns/Barke request from this Appeal Tribunal. The Employment Tribunal had this to say in its decision at paragraph 2:

"At the conclusion of the hearing, there was insufficient time to hear the submissions on behalf of the parties and it was agreed that submissions would be sent and exchanged within seven days. Submissions were in due course received from the Respondent. No submissions were made in writing on behalf of the Claimant. The Chambers appointment proceeded on the basis that the Claimant did not intend to make any submissions following the conclusion of the hearing."

1. In relation to the Burns/Barke request that was made by the Employment Tribunal, designed to elicit whether the Employment Tribunal had considered or indeed made any attempts to find what the position was in relation to the written submissions, one finds this: the letter in question is dated 25 May 2011 and is to be found at page 45 of the bundle. In answer to the questions posed by the Employment Appeal Tribunal, the Employment Tribunal wrote as follows:

"The Employment Judge did not instruct the clerk to remind the solicitor to the Claimant that he/she had not made submissions.

It was only on the day of the chambers appointment that it was appreciated by the Employment Judge that the Claimant had not presented written submissions, by which time the chambers meeting had been delayed for several months since the evidence in the case and it was considered more important to proceed to decide the issues rather than establish why the Claimant had decided not to make submissions. The respective arguments of the parties were clear to the Tribunal members."

1. It is our opinion that the Employment Tribunal had concluded that the Claimant did not intend to make written submissions before it considered the question of making enquiries in relation to the absence of those written submissions. It concluded, further, that the Claimant had decided not to file written submissions solely on the basis of their absence. Further, the question that the Employment Tribunal addressed to itself was not, "Why do we not have the Claimant's submissions before us?" The question that the Employment Tribunal had posed to itself was, "Why has the Claimant decided not to file written submissions?" We are also puzzled by the reference to avoiding delay. While we recognise the importance of avoiding delay in a case where there has been a five month gap between the conclusion of the evidence and the delivery of a Judgment, we ask ourselves how a short telephone call either to the Claimant's representatives or the Respondent's representatives might cause delay. If the submissions were as is commonly available in electronic form and had simply not been received by the Employment Tribunal, they could have been supplied very quickly; if the reason for non availability of the submissions was that they had not been prepared at all, then the Employment Tribunal would have had every reason to proceed in their absence.

1. The Notice of Appeal originally had two grounds: the first ground was that the Employment Tribunal was wrong to have concluded that no submissions had been sent; the second ground of appeal was to the effect in the alternative that, before proceeding to consider the merits of the case and proceed to its conclusions, the Employment Tribunal should have contacted at least the Claimant's representative to find out what the position was. We note that Ms Blair, the trainee solicitor, did not lodge a witness statement, nor has there been any other evidence placed before the Appeal Tribunal or the Employment Tribunal to support the case that the written submissions were sent as Ms Blair claims. We only derive our knowledge of what Ms Blair says from a submission of Mr Reed, and no fax record has been produced that would have demonstrated clearly one way or the other whether the submissions had been submitted; Ms Blair said that she had not retained a copy.

1. On 28 September the matter came before HHJ Ansell, on the 'sift'; he stayed the proceedings so the Claimant could apply to the Employment Tribunal for a review of its decision. On 12 October 2010 the Free Representation Unit wrote to the Tribunal to explain that it had decided not to seek a review because it felt in the circumstances were there to be a review hearing the Employment Tribunal might not be in a position to bring a fresh mind to bear.

1. The appeal came on the sift and was referred to HHJ Birtles who on 21 December 2011 made a direction under rule 3(7). The Claimant sought a hearing under which came before due course by the Claimant on 21 December 2010. On the matter came before Slade J on5 May 2011; she stayed the rule 3(10) hearing and made the Burns/Barke order to which we have referred. The Burns/Barke order, which we have considered, did not, as Burns/Barke orders frequently do, invite the Employment Tribunal to consider of its own motion whether to review its decision. Those present here all understand that a Burns/Barke order is an order made on occasion by the Employment Appeal Tribunal seeking further information from an Employment Tribunal where it appears that it may have failed to deal with a particular issue of fact or law, and to do so prior to a full appeal, which may be rendered unnecessary by the Employment Tribunal's response. Slade J, dismissed ground 1 because she considered that there was no evidence to support the assertion that the Claimant's submissions had been sent to the Tribunal by Ms Blair. She directed as I have said, ground 2 was to be considered under rule 3(10) after the Burns/Barke order had been complied with. The Employment Tribunal responded to the Burns/Barke order in the terms we have already referred to on 25 May 2011.

1. On 2 August 2011 ground 2, which is the subject matter of the appeal before us today, came before HHJ McMullen QC under rule 3(10) and he directed that this ground be referred to a full hearing.

1. We now turn to the Claimant's submissions. Our attention was firstly drawn to rule 27(2) of the Employment Tribunal Rules of Procedure, which entitle a party to make submissions on the law and the evidence. There is no specific reference in the rules to written submissions, but there is authority that common sense dictates that an Employment Tribunal has in appropriate circumstances power to seek written submissions instead of oral submissions in its discretion.

1. The Claimant submits that the facts of this case are analogous to a case where a party has failed to attend a hearing, and as we shall come to this shortly, there is some authority that suggests that in certain circumstances in the event of non-attendance by a party it is incumbent on the Tribunal to contact that party and discover why there has been non attendance; reference has been made to London Borough of Southwark v Bartholomew [2004] ICR 358 and Cooke v Glenrose Fish Company Ltd [2004] IRLR 866, to which we will come. Mr Reed realistically conceded that there was greater prejudice to a party who has not attended, having a case dealt with in his absence, than the case of the party who has contested a hearing, given evidence and challenged the evidence of the opposite side, but who has simply not had his written submissions considered, but he stressed to us the importance to the parties of making written submissions, especially in a case in which the Employment Tribunal had expressly sought them.

1. Mr Reed submitted to us that the authorities revealed a distinction in the circumstances of the absence of a party of the consideration of whether to make enquiries and the actual making of those enquiries. This may seem to be a somewhat fine distinction. In the present case Mr Reed submitted that the Employment Tribunal relied simply on the absence of submissions as being the only evidence that no submissions were intended to be made. The Employment Tribunal should have considered why there were no submissions from the Claimant and at the very least considered whether or not to telephone her representative to enquire. He submitted to us that it was appropriate in those circumstances for there to be a new hearing, and effectively repeated the submissions that had been made in the letter as to why a review had not been sought that it was not considered in the circumstances of the case that the same Employment Tribunal could bring a fair and impartial mind to bear on the matter.

1. It was submitted to us on behalf of the Respondent by Mr Crow that we must accept that the written submissions were not sent to the Employment Tribunal; we do, and we approach the case on that basis. He submitted that what we were faced with was a case management decision, which should be respected, and the Employment Tribunal was entitled to have regard to the principle that its orders should be complied with. The Employment Tribunal did consider whether or not to make enquiries, and decided not to do so for good reasons; in particular, Mr Crow drew our attention to the language of the Burns/Barke answer. We should give a benign interpretation to a case management decision, and our attention was drawn to the case of [Gayle v Sandwell & West Bromwich Hospitals NHS Trust]() [2011] EWCA Civ 924, on the importance of Appeal Tribunals upholding case management decisions. We shall turn to this very shortly.

1. Our attention was also drawn to the overriding objective of the importance of dealing with cases fairly and justly, and having regard to the expenditure of resources both by the parties and on the part of the Employment Tribunal. Mr Crow submitted that the Claimant could, and indeed should, have gone back to the Employment Tribunal if it thought that the answers to the Burns/Barke enquiries were unsatisfactory, and ask whether they considered or did not actually make any enquiries. The Employment Tribunal, Mr Crow submitted, had shown good reasons for its decision, namely the importance of avoiding delay. The Employment Tribunal was entitled to have regard to the decision of the Appeal Tribunal in the case of Baggs v Connex, which had concerned cases where there had been a very long delay between the conclusion of oral proceedings and the delivery of a Judgment, and as a rule of thumb the Appeal Tribunal had suggested that Judgments should be delivered within three months of the end of the hearing. He also submitted that the Claimant's remedy was not to appeal but to seek a review.

1. Mr Crow then went on to submit that even if, contrary to his submissions, the Employment Tribunal had any duty to make enquiries as to what had become of the submissions, the Claimant would only succeed if it could show that something was seriously irregular and unfair. Our attention was drawn to the case of Mayo Deman v Lewisham College [2003] UKEAT/0104/02, where the Claimant was unable to do so. He submitted that on the merits, the submissions, which were not received by the Tribunal, raised nothing that was not already known to the Employment Tribunal and that is what the Employment Tribunal said. Mr Crow sought to demonstrate to us that the Employment Tribunal had dealt with all the matters raised in those submissions and had in effect decided the case in a way that was dependent not on contested evidence but the Claimant's own submissions. He pointed to the fact that the Claimant had not sought, save in respect of one matter that had been raised before HHJ McMullen QC, as is apparent from the transcript, to point to any matters in the submissions that would have led the Employment Tribunal to find differently or that had not been dealt with by the Employment Tribunal. It was submitted that the matter should properly be remitted to the same Employment Tribunal to reconsider, were we minded to find that there had been a procedural injustice, but that the parties should be permitted, having regard to the lapse of time, to support their written submissions with further oral submissions.

1. Mr Crow drew attention to the decision in Sinclair Roche & Temperley v Heard [2004] IRLR 763, to which we will refer shortly. We should assume that the Employment Tribunal would approach, in accordance with the understanding which we should accept, that the Employment Tribunal would undertake any rehearing based on those submissions only, conscientiously and fairly. Mr Crow submitted that proportionality was strongly in his favour. He pointed to the significant expense to the Respondent of there being a fresh hearing; the Claimant was in effect going to be allowed to have a fresh bite at the cherry. There was a public interest in finality and a public interest in ensuring that the resources of the Employment Tribunals were used appropriately. The lapse of time now between matters complained of, which went back to 2008 to 2009, was such that a rehearing would be unsatisfactory, because the witnesses might have some difficulty in remembering what had taken place and were likely to confuse the evidence as to what has actually taken place with the evidence they had given previously. He submitted there was no bias or partiality, because Employment Tribunals are expected to be able to bring a fresh mind to bear, and that is the basis upon which they have been given their express power to review their decisions.

1. We have already referred to rule 27, and I do not think it necessary to set it out. I also refer to the decision of Burton J in London Borough of Southwark v Bartholomew. This was a case in which a party had failed to attend before the Employment Tribunal and no attempt had been made to contact that party to find out why:

"13. There is a note in Harvey on Industrial Relations and Employment Law, at paragraph T829. That sets out what the editors of Harvey plainly consider to be not only the normal but the proper practice in the event of an appearance by a respondent, or indeed an applicant, at a hearing. The passage reads as follows:

'In practice, when a party fails to appear at the hearing, the tribunal clerk will endeavour to contact him by telephone at his last known address and enquire whether or not he intends to appear. If he does so intend, and is able to get to the tribunal within a reasonable time, the tribunal will ordinarily stand the case back until he arrives. However, if as a result of a delay, the case does not finish within the day and has to be further adjourned, he is likely to have an order for costs made against him under rule 14(4), unless he has a valid explanation for the delay. If he intends to appear, but is unable to do so on that day for a good reason, then the appropriate order is to adjourn the case to a future date […]. If, on the other hand, he indicates that he does not intend to appear, the tribunal will generally dismiss the case, if the absent party is the applicant, and award costs under rule 14(1), or, if the absent party is the respondent, it will hear the case in his absence and, if the applicant is successful, perhaps award costs against the respondent.'

14. It is to be noted that no costs were awarded against the Respondent on this occasion. It is quite manifest that that practice, which is set out by Harvey, is not only what ought to occur but what ordinarily does occur and we expressly approve it. Mr Aziz himself, in his submissions to us, indicated that in his experience, appearing as a consultant in the Tribunals, that is ordinarily, although he says not universally, the practice. If it is not universally the practice, it should be. It is certainly the practice of this Appeal Tribunal that, if a party is not here when the case is called on, the case will not automatically proceed in the absence of the party; and we are in the situation in which the remedy of the Appeal Tribunal, if the party does not appear, is to proceed to decide the matter on the papers, which is what we ordinarily do, rather than to dismiss the appeal. The position at the first instance Tribunal is consequently far more drastic if it means that the result is that the application is either dismissed or granted summarily. Of course, the Employment Tribunals must protect themselves from incompetence and disregard by parties, and it is sadly very often the case that one party or the other will have decided not to take part, not to proceed with or not to oppose an application, and, consequently, not turn up, no doubt just as GP surgeries have many un-complied with appointments; but there must be a compromise, and Harvey records what it is, between insisting on going ahead willy nilly at exactly the time specified, and giving at least some opportunity to find out why a party has not attended."

1. I then refer to the case of Cooke. This, again, is a decision of Burton J. Burton J learned that the practice to which we have referred, set out by Harvey and approved by the Employment Appeal Tribunal over which he had presided in London Borough of Southwark v Bartholomew, was contrary to a practice direction of the President of the Employment Tribunals, Judge Meeran.

" 'What if a party is absent? Remember, there is no obligation on a party to attend the hearing. Subject to your judicial discretion in a particular case, it is usually best to hear and determine the case. Experience shows that attempting to contact the missing party or representative is unsatisfactory. If the party did intend to attend but is genuinely absent, the matter can be put right on review.'

11. The words "if a party is genuinely absent" are not, with respect to Judge Meeran, entirely clear, because obviously, unless he is hiding round the corner, he or she is genuinely absent. Presumably what was meant by that was absent for good reason, or at any rate not absent deliberately. Judge Meeran therefore indicates that matters are best dealt with by being put right on review; and one can understand that at employment tribunals, particularly given the large number of unrepresented litigants, there will be some litigants, be they applicant or respondent, who have in fact decided not to attend, but, if telephoned on the day, might then change their minds, or at any rate represent that they have changed their minds, and thus lead to an adjournment; where if they were not telephoned and the case went ahead they might be perfectly content, as perhaps was always their intention, to leave the decision to stand."

Burton J continued:

"12. Consequently, it would appear that our understanding in Bartholomew [2004] ICR 358 of what the practice is was inaccurate, so ought we to reconsider our view by reference to what the practice ought to be? It is to be emphasised that Judge Meeran's direction specifically does say "subject to your judicial discretion in any particular case". It is plainly essential for the employment tribunal to exercise that judicial discretion, and consequently, whereas it may be wrong to say that in" every case a tribunal must telephone if there is an absent party, it is on the other hand clearly right to say that in every case a tribunal must consider whether to telephone, and must, as it appears the tribunal did not in this case, inquire further particularly of a represented party what news there is or was of the other party, and as to whether in those circumstances it is possible that the other party is delayed or has forgotten about the matter but was, so far as can be understood, intending to come. Of course, the represented other party will be required to exercise the highest standards of probity but at the same time be acting in the interests of his or her client. There is no need for volunteering of assistance if it be not called for.

[…]

14. We conclude here that the tribunal ought to have asked further questions than it did. But we are not prepared, because of the course that we propose to take in this case, to say that necessarily the tribunal erred in the exercise of its discretion. Plainly if the tribunal did not apply its mind at all to the question then it erred in the way that we have indicated earlier, because it should have done. It may be that the tribunal did turn its mind to the question here, but without further investigation the matter cannot be entirely clear to us.

15. What, however, is absolutely clear is that if the tribunal was going to take the kind of extreme step in this case of not telephoning, even though there was a solicitor on the record, then that must carry with it the obligation which Judge Meeran himself suggests, that the matter can be put right on a review.

16. Before we turn to the review, therefore, we emphasise that our view remains the same as it did in Southwark London Borough Council v Bartholomew [2004] ICR 358, namely that in ordinary course the best procedure is that which is followed by this appeal tribunal; but we are not laying down as a requirement that every tribunal should telephone, we are saying that that course should be considered, and, in a case such as Bartholomew, or such as this, we would need very good reason why the course of a telephone call would not have been followed."

1. It is, I think, helpful to have also regard to the case of Mayo-Deman, to which we were referred by counsel. The Employment Appeal Tribunal considered a decision of the Court of Appeal in the case of Stanley Cole (Wainfleet) Ltd v Sheridan [2003] ICR 297, which had itself considered two earlier cases: Albion Hotel (Freshwater) Ltd v Silva [2002] IRLR 200 and Nelson v Carillion Services Ltd [2003] IRLR 428. Those two cases concerned a failure on the part of the Employment Tribunal to refer to the parties authorities on which it had relied in coming to its conclusion without informing the parties, who had no opportunity to comment on them. In the first case, Albion Hotel, those authorities had a significant effect on the decision of the Employment Tribunal, and consequently it was held that a failure to disclose them to the parties so they could comment upon them amounted to a significant procedural irregularity. In the case of Nelson the authorities did not have that significant effect on the decision. What the Employment Appeal Tribunal said in Mayo-Deman at paragraph 15 was this:

"In our judgement it is not sufficient for a party to submit there has been a breach of the rules of natural justice by an Employment Tribunal whether by the failure to refer the parties to an authority it tends to rely upon, or by the failure to cross-serve parties' final written submissions and invite comments thereon, before reaching its decision. A technical breach of the rules of natural justice cannot inevitably result in an appeal being allowed and the remission of the case for a full fresh hearing before another Tribunal. We agree with and apply the rationale of Stanley Cole (Wainfleet) to the facts of this case. In order to succeed in this appeal the Appellant needs to show she has suffered something which was 'seriously irregular and unfair' [a quote from Ward LJ], or 'substantial unfairness' [a quote from Buxton LJ]."

1. Mr Crow submitted that in the circumstances of this case there had been no such significant unfairness. That passage to which we have referred was approved by the Court of Appeal at paragraph 19, where Mummery LJ asked:

"Do the grounds show there is any error of law on the part of the Employment Tribunal? I have come to the conclusion they do not. Certainly good practice requires that, if written submissions are to be submitted to the Employment Tribunal after the oral hearing, they should be exchanged. Ideally each party should have an opportunity to comment. It does not follow, however, that any failure to follow that procedure results in an error of law. There will only be an error of law if the result of not following procedure prejudices the applicant in a way that produces substantial unfairness or constitutes a serious irregularity."

1. In that case the Employment Appeal Tribunal had analysed the various authorities in relation to the issue of procedure by written submissions, and in the words of Mummery LJ were entitled to come to the conclusion that in the light of the comments that would have been made, it would not have made any difference to the result, there was no substantial unfairness or serious irregularity such as to constitute an error of law.

1. In Gayle, as we remind ourselves, the Court of Appeal set out certain guidance to case management by Employment Appeal Tribunals, and at paragraph 21 he said:

"[…] If the ETs are firm and fair in their management of the cases pre-hearing, and in the conduct of the hearing the EAT and this court should, wherever legally possible, back up their case management decisions and rulings."

1. Before we leave the authorities I said that I would refer to the decision of Sinclair Roche & Temperley, in which Burton J set out certain factors that were relevant in a decision by an Employment Tribunal if it was mindful to allow an appeal as to whether it was appropriate to order a hearing for a new Tribunal or to remit the matter for further consideration by the original Tribunal:

(a) Proportionality: where there is sufficient money at stake so the increased cost of the hearing before a fresh Tribunal would not offend on the grounds of proportionality.

(b) The passage of time: a case should not be remitted to the same Tribunal if there is a real risk that it would have forgotten about the case.

(c) Bias or partiality: it would be inappropriate to send the matter back to the same Tribunal if there was a question of bias or the risk of pre-judgement or partiality, this factor not being limited to the case where the basis of the appeal was bias or misconduct by the Tribunal.

(d) A totally flawed decision: it would not ordinarily be appropriate to send the matter back to the same Tribunal where the appellate Tribunal conclude that the first hearing was wholly flawed or completely mishandled, for the appellate Tribunal must have confidence that with guidance the Tribunal can get it right second time.

(e) A second bite: it must be carefully considered whether the original Tribunal appears to have already made up its mind in relation to the matters before it, for if it has, it may well be a difficult if not impossible task to change it, and in any event there must be the very real risk of an appearance of pre-judgement or bias for cases remitted to such a Tribunal. The appellate Tribunal will therefore only send a case back to the original Tribunal if it has confidence that with guidance the Tribunal will be prepared to look fully at matters which it had not considered, and be willing to come to a different conclusion if so advised.

1. The last matter to which Burton J referred was Tribunal professionalism:

"In balance of all the above factors, the appellate tribunal will […] ordinarily consider that, in the absence of clear indications to the contrary, it should be assumed the original tribunal was capable of a professional approach for dealing with the matter on remission. By professionalism, we mean not only the general competence and integrity of the members as they go about their business, but also their experience and ability in doing that business in accordance with the statutory framework and the guidance of the higher courts. […] [Therefore] where a tribunal is corrected on an honest misunderstanding or misapplication of the legally required approach (not amounting to a totally flawed decision […]), then, unless it appears that the Tribunal has so thoroughly committed itself that a rethink appears impracticable, there can be the presumption that it will go about the tasks set them on remission in a professional way, paying careful attention to the guidance given to it by the appellate tribunal."

1. We now turn to our conclusions. We consider there is a fair analogy between a case such as this, where there is the absence of an important document directed to be submitted by the Employment Tribunal and the case of someone who has absented himself or has failed to attend a hearing. We accept that the absence from a hearing is more prejudicial, but we do not wish to underestimate the gravity of denying a fundamental right in litigation available to a party to make submissions on the evidence and the law before judgement, especially if that opportunity has been furnished to the other party. We do not consider there is a burden on the Claimant to prove that consideration of her submissions would definitely have made a difference to the decision; this is the case whenever there has been a breach of natural justice. Having regard to the nature of the breach, there must in our opinion be a real possibility that consideration of the document may have led to a different result. It is impossible for us to investigate factual matters. We do not know and are unable to say what effect the written submissions would have had on the Tribunal had they been considered. It is sufficient for us to mention by way of example that there were live issues in relation to factual matters. For example, it was pointed out during the course of submissions that were the Claimant's conduct to have been as serious as it was characterised by the Respondent, it was surprising that there was no immediate suspension of the Claimant. This is simply an example; one might give others. In this case the submissions appear to be well reasoned and make powerful points both on the factual issues and issues of credibility. We find it impossible to say that the submissions, had they been considered, would have made no difference, and they may well have led the Employment Tribunal to make different findings. We think a reasonable case has been made out of that possibility.

1. Furthermore, in our opinion, to deprive a party of the opportunity to make representations at all, which was available to the other party, is so serious a matter that save in the most clear cases, where it can be demonstrated that the representations would have made no difference, it will be necessary for a Tribunal to rehear the matter. Burton J described in the case of absence of a party that the making of a telephone call was good practice, and that failure to make such a telephone call was "an extreme step" and that there would need to be a very good reason why the course of making the telephone call could not have been followed. This was not a simple question of fact that had been understood but a question of case management that had led to a detailed determination of the issues. The Employment Tribunal never made any enquiry as to whether there was a response. It concluded without any evidence to support the finding that this was because the Claimant did not intend to file a written submission. The only evidential basis for this finding was the absence of a written submission. We think that this is unsafe and perverse in itself. The Employment Tribunal never asked itself the right question ("what was the reason for the absence of the submission?") as opposed to why the Claimant decided not to file one.

1. We have come to the conclusion accordingly that the decision of the Employment Tribunal cannot stand. There has been in our opinion a serious procedural irregularity. We have considered with care and some anxiety what order we should make. We recognise the force of the submissions made by Mr Crow as to the inconvenience and expense of ordering a fresh hearing. However, we have come to the conclusion that this is not a case where there has been a misdirection on a matter of law or where certain discrete matters have gone wrong. The Employment Tribunal produced a detailed, careful Judgment in which it found comprehensively for the Respondent. We think 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 rehearing. It might well be considered by an informed bystander that there is too obvious an opportunity for the Employment Tribunal to have a second bite at the cherry. We do not say that they would do that, but they may well be perceived as likely to do so.

1. In those circumstances, and, as I say, with some anxiety, we direct that this matter should be remitted for a fresh hearing before a different Tribunal. Before we conclude this Judgment, I would like to record the gratitude the Employment Appeal Tribunal has to persons such as Mr Reed and the Free Representation Unit who appear on behalf of claimants or respondents without remuneration, and also we would like to pay tribute to Mr Crow for his skill in making his points and standing his ground despite what might be considered to be considerable resistance from the bench, and we are very grateful to him for his assistance.