Radford v Teeside University

Where a representative assures a claimant that a hearing will be postponed, and then fails to communicate the refusal of postponement or withdraws while the claimant is abroad, the claimant’s absence may provide an exceptional basis for review. An Employment Judge considering whether a review application has a reasonable prospect of success must assess the claimant’s account on its face. If that account discloses a possible denial of a fair opportunity to attend or renew the postponement application, the matter should proceed to a full review hearing. The judge should not summarily reject the application by treating the claimant’s absence as a voluntary decision without addressing the representative’s misleading conduct.

The claimant brought claims of constructive unfair dismissal, age discrimination and sexual-orientation discrimination against her former employer. She was represented by the Legal Bureau, whose representative assured her that the substantive hearing would be postponed. She travelled abroad, unaware that the postponement had been refused. The representative then withdrew and did not renew the postponement application at the hearing, which proceeded in the claimant’s absence and resulted in dismissal of her claims.

An Employment Judge summarily rejected the claimant’s review application. The central issue was whether the facts advanced in that application disclosed a reasonable prospect of review, requiring determination by a full Employment Tribunal.

1. Appeal allowed. The Employment Judge’s summary rejection of the review application was set aside.
2. On the claimant’s account, her representative had given a firm assurance that the hearing date would be changed. The Employment Judge failed to distinguish that assurance from the substantive Tribunal’s mere supposition that the claimant had gone on holiday knowing that the hearing might proceed.
3. The representative’s conduct, including failure to communicate the refusal of postponement and unilateral withdrawal, potentially deprived the claimant of the opportunity to attend or renew the postponement application. Those circumstances were capable of engaging the interests of justice ground under ET rule 34(3)(e).
4. The guidance in Newcastle Upon Tyne City Council v Marsden [2010] ICR 743 supported the conclusion that the application required determination by a full Tribunal, rather than summary dismissal by an Employment Judge alone.
5. The EAT declined to conduct the review itself under section 35(1) of the Employment Tribunals Act 1996. The respondent was entitled to explore the circumstances in cross-examination, despite not challenging the claimant’s account on credibility. The review application was remitted to a fresh, full Employment Tribunal.

• Employment Tribunal: Substantive claims were dismissed after the claimant and her representative failed to attend the hearing.
• Employment Tribunal: An Employment Judge summarily rejected the claimant’s review application on 1 April 2011.
• Employment Appeal Tribunal: Appeal allowed and the review application remitted to a fresh, full Employment Tribunal.