South East Leisure Group Ltd v Vachoumis

An employment tribunal must determine a properly made application for review before treating a respondent as excluded from proceedings. Evidence informally received from an excluded party does not replace the party’s full right to be heard. That right includes the opportunity to give evidence, cross-examine witnesses, open the case and make submissions. Where the review application has not been determined and the omission may have affected the result, the appropriate course is to accept the respondent’s response and hold a full hearing.

The Employment Tribunal found that South East Leisure Group Ltd had unfairly dismissed the claimant and ordered substantial compensation. The company had been debarred after failing to submit a timely ET3, although it had applied for a review of that decision. The review application was overlooked. The Employment Appeal Tribunal directed that the application be considered, but the Employment Judge instead concluded that the company had suffered no prejudice because one of its witnesses had been permitted to give evidence. The central issue was whether that informal participation cured the failure to determine the review application and afforded the company a fair hearing.

1. The appeal was allowed. The Employment Tribunal had never determined the company’s application for review of its debarment.
2. Under rule 35 of the 2004 Rules, the review application required preliminary consideration. If it had no reasonable prospect of success, it could be rejected at that stage. Otherwise, a review was required where the relevant conditions were met, including that the party was unaware of the proceedings or that the interests of justice required a review.
3. The Employment Judge’s conclusion that the company suffered no prejudice was unsustainable. The hearing was not a review and did not give the company a full opportunity to conduct its case. Its witness was heard only by indulgence. The company could not call evidence generally, cross-examine the claimant, open its case or make submissions.
4. Those procedural safeguards were material, particularly because the identity of the claimant’s employer was central to the merits. The possibility that the same substantive result might follow could be considered only after a proper hearing.
5. The company was granted an extension of time to validate its existing ET3. The ET3 was to be accepted, and the matter was remitted for a full hearing with notice to the claimant, the company and Zaff Brighton Ltd.

• Employment Tribunal: found that South East Leisure Group Ltd had unfairly dismissed the claimant and made compensation and other monetary awards.
• Employment Appeal Tribunal: allowed the appeal because the review application had not been determined and directed acceptance of the ET3 and a full rehearing.