The Secretary

Central London Employment Tribunal                                    

Victory House,

30-34 Kingsway

London

WC2B 6EX

Case  Nos. 2405352/2006 - C. D’Silva v UCU,  Paul   Mackney, Sally Hunt and Niel Williamson,

 

12th July 2007,

 

Dear Sir/Madam:

 

I acknowledge a receipt of notes of the CMD conducted by Mr Southam on 27th June 2007 and note at paragraph 3 of his notes which states as follows:

 

“It seemed to me that there was no power for the Tribunal on the application of the Claimant to review a decision to accept a response.  Mr Deman was invited to indicate what power the tribunal had to conduct such a review but he was unable to assist and did not pursue that application”.

 

In view of my past complaints I remind the Tribunal that the Chairman has a duty to comply with the Employment Tribunals (Constitution and Rules of Procedures) Regulations 2005. In particular, I draw your attention to Rule 3 of Schedules 2, 3 & 4.  I believe Mr. Southam failed in regard to Rule 3 of Schedule 2 parts a-d.

Overriding objective
3. –

 (1) The overriding objective of these regulations and the rules in Schedules 1,  2, 3, 4 and 5 is to enable tribunals and chairmen to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable:  - 

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

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

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) A tribunal or chairman shall seek to give effect to the overriding objective when it or he:  - 

(a) exercises any power given to it or him by these regulations or the rules in Schedules 1, 2, 3, 4 and 5; or

(b) interprets these regulations or any rule in Schedules 1, 2, 3, 4 and 5.

(4) The parties shall assist the tribunal or the chairman to further the overriding objective.

In regard to Mr. Southam’s comment as to what power did the tribunal have to conduct such a review this is listed under Rules 34-36.  

 

Review of other judgments and decisions
 34.  –

 (1) Parties may apply to have certain judgments and decisions made by a tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are  - 

(a) a decision not to accept a claim, response or counterclaim;

(b) a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and

(c) a decision made under rule 6(3) of Schedule 4;

and references to "decision" in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules.

    (2) In relation to a decision not to accept a claim or response, only the party against whom the decision is made may apply to have the decision reviewed.

    (3) Subject to paragraph (4), decisions may be reviewed on the following grounds only  - 

(a) the decision was wrongly made as a result of an administrative error;

(b) a party did not receive notice of the proceedings leading to the decision;

(c) the decision was made in the absence of a party;

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) the interests of justice require such a review.

    (4) A decision not to accept a claim or response may only be reviewed on the grounds listed in paragraphs (3)(a) and (e).

    (5) A tribunal or chairman may on its or his own initiative review a decision made by it or him on the grounds listed in paragraphs (3) or (4).

Preliminary consideration of application for review
     35.  –

(1) An application under rule 34 to have a decision reviewed must be made to the Employment Tribunal Office within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so.

(2) The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), but if the decision to be reviewed was made at a hearing, an application may be made orally at that hearing.

(3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision or, if that is not practicable, by -

(a) a Regional Chairman or the Vice President;

(b) any chairman nominated by a Regional Chairman or the Vice President; or

(c) the President;

and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.

(4) If an application for a review is refused after such preliminary consideration the Secretary shall inform the party making the application in writing of the chairman's decision and his reasons for it. If the application for a review is not refused the decision shall be reviewed under rule 36.

The Tribunal does have power under Rule 34 and Justice Burton provides helpful guidance in Moroak (t/a Blake Envelopes) v Cromie [2005] IRLR 535 that the Tribunal can review any decision under the interests of justice. We believe this would not preclude a review of the Tribunal’s decision to accept the Respondents’   out of time ET3 Form under Rule 6. 

 

Default-judgment

5. Rule 8(1) (default judgments) of Schedule 1 shall apply in relation to the time limit for presenting a response, but it shall not apply in relation to the time limits in paragraphs (2) and (3) of rule 3 in this Schedule.

 

The Tribunal wrongly made its decision as a result of an administrative error:  The Employment Tribunals (Constitution Rules of Procedures) Regulations 2005, Rule 5, under the heading “Acceptance of Response Procedure” states as follows:

 

  • If a response does not comply with rule 6 (1) as in this case the Secretary should not accept the response and shall return it to the Respondents with an explanation why it was not accepted.  The tribunal procedurally failed to do this and no evidence to the contrary has been provided.

 

  • The Respondents in their application to extend time stated that the Tribunal contacted them by phone to make them aware that their ET3 was inappropriately filed in breach of Rule 6 (1).

 

  • The Secretary of the Tribunal failed to adhere to Rule 6(2) by accepting the ET3 Form in that it did not comply with Rule 6 (1) by not using the prescribed ET3 Form under Rule 4(2). The response was sent along with prescribed Form outside the relevant time limit in breach of Rule 6(2)(b).

 

  • The Secretary in accepting the ET3 Form in breach of Rule 6 (1), 6(2)(b) breached Rule 5(2) in failing to send copies of the acceptance to all other parties.

 

We point to Rule 5(2) in rebuttal to Mr. Southam’s hostile statement against the Claimant’s lay representative when he stated in open court that only the Respondents needed to be informed of the decision to accept late ET3 Form.

 

 

We were only made aware of the Tribunal’s decision to accept the respondent’s IT3 via the respondents at the CMD of the 27th June 2007 despite the voluminous correspondence sent to the Tribunal, listed bellow:

 

1.          On 6 November 2006 the respondents’ solicitor sent their response to the Tribunal, which did not have an ET3 From. On 8/03/07 the respondents’ counsel submitted an application to extend the time which I opposed by my letter dated 2/02/07.

 

2.         The respondents in their application to extend the time stated that the Tribunal had contacted them about their response without a proper ET3 Form.  There is no record of this in the tribunal file.

 

3.         The respondents’ counsel asserted in their application to extend the time that ET Form got detached from the material provided to the tribunal on 06/11/06.  This is not only incorrect but is also absurd an ET3 Form dated 8/2/07 could not have detached on an earlier date.

 

4.         On 10/03/07 I again wrote to the Tribunal regarding my request to enter a default judgment against the respondents in view of their failure to comply with the new Tribunal Procedures 2005 (rule 4).  Although the tribunal acknowledged my letter on 12/03/07 they did not address my request for a default judgment.

 

5.          On 23/03/07 I wrote to the London Tribunal and again raised the same issue of entering a default judgment and the failure to respond to my earlier letters.

 

6.         On 3/05/07 I again wrote to the London Tribunal in response to the respondents’ application to extend the time and provided further reasons to enter a default judgment and also provided relevant case laws but still did not receive a reply.

 

7.        On the 11/6/07 I again wrote to the London tribunal as follows:

 

“I note the agenda for discussion and would like to know why the first point for consideration is not the issue of the proper filing of the respondents IT1 and the question of its acceptance or that the respondents being debarred from the proceedings according to tribunal procedures.     I raise this issue in view of the lack of a reply from the London ET to my previous correspondence on this matter and knowing if our positions were reversed that the claimant would have been automatically debarred.”

 

We received no explanation in regard to the above matter until I attended the CMD on the 27th June 2007 and was given the decision of the tribunal to accept the late IT3 dated the 5/3/2007.

I note that the Tribunal has  discretion but this expressly described as being one to that which is just and equitable (parg 27) 

 

The respondents explanation in regard to the test of why it was not reasonable practicability (parg 27) to comply with rule 6, are not clear and persuasive but openly dishonest. 

.        

·         The respondents’ counsel asserted in their application to extend the time that the ET Form got detached from the material provided to the tribunal on 06/11/06.  This is not only incorrect but is also absurd an ET3 Form dated 8/2/07 could not have detached on an earlier date.

 

Under Rule 34 we request a review of the Judgement to accept the late IT3 citing Schedules 3a, b & e as the grounds for such a review per the Tribunal procedures and request that we be granted a default-judgment under Rule 5 of  the tribunal procedures.  We have cited 3b in view we did receive the decision of the Tribunal until the CMD of the 27th June 2007. 

 

Alternatively, if the Tribunal thinks, it is not possible to review its decision then  we request that the Respondents are debarred under Rule 9 from taking further part in the proceedings because they failed to file a proper response to the claim within time.

 

Yours Sincerely

 

 

Dr Claudius  D’Silva

 

 

Hence the suggestion from victims that the ET be re-named the Employer’s Tribunal.