Clark v H2o Water Services Ltd (Practice and Procedure : Review)

An Employment Tribunal may refuse a review where a party has not proved that a properly posted hearing notice was not received. A decision made in a party’s absence does not itself entitle that party to a review. The Tribunal must consider the interests of justice, and may have regard to the helpful factors in the Civil Procedure Rules.

For the reasonable-practicability exception to the time limit for unfair-dismissal claims, loss of a posted claim form is insufficient by itself. A solicitor who posts a claim close to the deadline must check that it has arrived by the deadline, or use fax or email as a precaution. A claimant is bound by the default of the solicitor acting for them.

The claimant appealed against an Employment Tribunal judgment dated 16 September 2011 refusing to review its earlier judgment of 8 March 2011. The earlier judgment had dismissed his unfair-dismissal complaint for want of jurisdiction because it was presented outside the statutory time limit.

The claimant’s solicitor said that an ET1 posted shortly before the deadline had been lost. A replacement was faxed after the deadline. The solicitor did not attend the pre-hearing review concerning time limits and later sought a review, asserting that the hearing notice had not been received or diarised.

The appeal raised whether the review should have been granted and, if it had, whether it was reasonably practicable to present the claim in time.

1. Appeal dismissed. The Employment Judge was entitled to find that the claimant had not displaced the presumption that a properly posted pre-hearing-review notice had been received. The notice was sent to the address in the claim form. The evidence did not prove non-delivery, and correspondence received by the solicitor referred to the pre-hearing review.

2. A decision made in the absence of a party does not automatically require a review under rule 34(3)(c). The Tribunal must consider the interests of justice. The factors in CPR rule 39.3(5), although not compulsory under the Employment Tribunal Rules, are helpful considerations. Here, the Employment Judge was entitled to conclude that there was no good reason for non-attendance and that the interests of justice did not require the earlier judgment to be revoked.

3. Even if review had been granted, the unfair-dismissal claim would have remained out of time under section 111(2) of the Employment Rights Act 1996. Applying Capital Foods Retail v Corrigan, postal loss of a claim form does not alone establish that timely presentation was not reasonably practicable. A solicitor who elects to post a claim close to the deadline must check with the Tribunal by the deadline, or send a further copy by fax or email.

4. The solicitor had diarised the deadline but failed to act on it until the following day. Presentation in time was therefore reasonably practicable. The claimant could be in no better position than his solicitor. The Tribunal’s dismissal for want of jurisdiction stood.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s refusal to review its judgment and confirmed that the underlying unfair-dismissal claim was out of time.
• Employment Tribunal: On 16 September 2011, refused a review of its judgment of 8 March 2011, which had dismissed the unfair-dismissal complaint as presented out of time.