Kyamanywa v London Borough of Hackney

An employment tribunal’s power to review a decision on the grounds of non-attendance and the interests of justice is distinct from its power to review for non-receipt of notice. Failure on the notice ground does not prevent review on the other grounds. The tribunal must consider the party’s absence, the reasons for it, whether the case was determined on its merits, the surrounding circumstances and the prejudice to each party. Where a party’s discrimination claims have not been heard on their merits because of confusion about representation, the interests of justice may require a review despite the importance of finality.

The appellant brought race and sex discrimination claims against her former employer. Her claims were dismissed in her absence under regulation 9(3) of the Employment Tribunals Rules of Procedure 1993. She applied for a review, alleging that she had not received notice, that the decision was made in her absence and that the interests of justice required review.

The Employment Tribunal accepted that notice sent to her solicitors constituted service, refused review and declined an adjournment to call further evidence. The Employment Appeal Tribunal dismissed her appeal on 12 July 2002. The central issue was whether the review tribunal had lawfully exercised its discretion.

1. Appeal allowed. The matter was remitted to a freshly constituted Employment Tribunal for rehearing on the merits.
2. Under regulations 20(3)(c) and 20(4) of the Employment Tribunals Rules of Procedure 1993, a notice sent to an authorised representative is deemed to have been sent to the party. The review tribunal was entitled to find that the solicitors remained authorised representatives when the hearing notice was sent. No effective notice had been given requiring future communications to be sent to the appellant personally.
3. The review grounds were legally distinct. A review could fail under regulation 11(1)(b), because notice had been received or deemed to have been received, yet succeed under regulation 11(1)(c) because the party was absent, or under regulation 11(1)(e) because the interests of justice required review.
4. In assessing those grounds, the tribunal had to consider the appellant’s absence and its reasons, the uncertainty surrounding representation, the fact that the claims had not been decided on their merits, and the prejudice to both parties. The review tribunal’s narrow focus on non-notification caused it to leave relevant circumstances out of account.
5. Finality in litigation remained important, but carried less weight where the original decision did not determine the merits. On the facts, refusing a review would permanently deprive the appellant of an opportunity to have her discrimination claims examined, while the prejudice to the respondent from a rehearing was less substantial.
6. The court added practical guidance: parties and representatives should promptly notify the tribunal of changes in representation and address, and tribunals facing uncertainty should communicate with both the supposed representative and the litigant.

• Court of Appeal (Civil Division) allowed the appeal and remitted the case to a freshly constituted Employment Tribunal for rehearing.
• Employment Appeal Tribunal dismissed the appellant’s appeal on 12 July 2002, holding that the Employment Tribunal had not erred in law by refusing an adjournment at the review hearing.
• Employment Tribunal dismissed the original discrimination claims on 6 September 2000 in the appellant’s absence, then refused her application for review on 29 March 2001.