Papajak v Intellego Group Ltd & Ors

Under rule 35(3) of the Employment Tribunal Rules of Procedure 2004, “not practicable” means not feasible, rather than inconvenient. An unfounded allegation of bias does not ordinarily make it impracticable for the Employment Judge who made the decision to undertake preliminary consideration of a review application.

A review is not a substitute for an appeal or a re-hearing. Where a party deliberately leaves a hearing, the Tribunal may dispose of the claim in that party’s absence after considering the information supplied by the parties. A signed witness statement may be considered, but may carry substantially less weight where its maker declines to give oral evidence in a disputed factual case.

The Claimant brought claims including constructive unfair dismissal. During the Employment Tribunal hearing, a dispute arose about the order in which witnesses should give evidence. The Tribunal directed that a respondent witness, who was available for one day only, should be heard first.

The Claimant rejected that ruling, declined to give evidence and left the hearing. The Tribunal considered the pleadings, documents and witness statements, including her 41-page statement, and dismissed the claims. Her subsequent application for a review alleged partiality and sought determination by a different Employment Judge. Employment Judge Stacey refused the application at the preliminary stage.

The appeal concerned the meaning of “not practicable” in rule 35(3), whether bias could be addressed through review, and whether the Tribunal had lawfully dismissed the claim after the Claimant’s departure.

1. Appeal dismissed. The Employment Judge was entitled to undertake the preliminary consideration of the review application. Rule 35(3) of the Employment Tribunal Rules of Procedure 2004 is a specific provision which displaces the general allocation power in rule 9. “Not practicable” means not feasible, such as where the original judge is unavailable, deceased or too unwell to act. It does not mean inconvenient.

2. An allegation of apparent bias, particularly one without merit, does not itself make preliminary consideration by the original Employment Judge impracticable. Otherwise, an unfounded allegation could prevent a judge from dealing with a review. Applying the test in Porter v Magill [2002] 2 AC 357, the witness-order ruling gave no real possibility that the Tribunal had treated the Claimant unfairly. It was a sensible case-management decision made to ensure a just and efficient hearing.

3. A review is confined to the grounds in rule 34 and is not an opportunity to rerun the case. The Claimant’s voluntary departure, despite warnings of its likely consequences, supplied no proper basis for review on the ground that the decision had been made in her absence. A bias complaint was more appropriately pursued by appeal.

4. Under rule 27(5) and (6), the Tribunal could dismiss the proceedings after the Claimant left, provided that it first considered the information made available by the parties. It had done so: it considered the pleadings, particulars, documents and all witness statements. In a materially disputed factual case, it could nevertheless conclude that the claim was not well founded because the Claimant, who bore the burden of proof, refused to give oral evidence. Her untested witness statement was hearsay and could properly receive less weight than oral evidence.

5. The Tribunal’s decisions lay well within the generous ambit of its case-management discretion. No error of law was shown.

• Employment Appeal Tribunal: the appeal against refusal of the review application was dismissed.
• Employment Appeal Tribunal (preliminary stage): HHJ Birtles dismissed the challenge to the original merits decision and permitted three review-related grounds to proceed to a full hearing.
• Employment Tribunal: Employment Judge Stacey and members dismissed the Claimant’s claims after she left the hearing, and subsequently refused her review application at the preliminary stage.
• Court of Appeal: permission to appeal against the dismissed merits grounds was refused.