Having seen the Claimant's Answer the Respondent then applied to the Employment Appeal Tribunal on 29 April for permission to amend the Notice of Appeal. That application was considered by the Registrar, who refused it by letter dated 30 April having taking into consideration submissions made on behalf of the Claimant. In doing so she referred to the Judgment of Judge Serota in Khudados v Leggate [2005] IRLR 540 and the lateness of the application. Against that Order the Respondent now appeals to me.
The Registrar's Appeal
Dealing first with the appeal against the Registrar's Order, I take into account the Claimant's solicitors representations opposing the amendment application dated 29 April. Today, the Claimant does not appear and is not represented, her solicitors being content to rely on the Answer by way of written representations to be considered at this hearing. Mr Beyzade has appeared before me on behalf of the Respondent.
The amendments sought are twofold. The first, at paragraph 7(vi) of the Notice, makes an alternative submission, that if, as the Claimant contends in her Answer, her solicitor's letter of 10 February was not an application under Rule 11 and Employment Judge Lewzey made her Order of 23 February on her own initiative under Rule 12, then the Tribunal failed to follow Rule 12(2) which provides as follows,
Secondly, at paragraph 9, the EAT is invited to order the Employment Tribunal to consider the Respondent's further application dated 2 March. I have now been provided with a copy of that application made to the Employment Tribunal by Mr Beyzade on behalf of the Respondent. It is in two parts: first there is an application that a Pre-Hearing Review (PHR) be held to consider striking out the Claimant's claim or alternatively making a deposit order under Rule 20; and secondly, an application that the case be re-listed on the issue of liability only.
I accept that the paragraph 7(vi) amendment arises directly from the Claimant's Answer and that relates to information which has been thus far withheld from the Respondent. The Respondent has not seen the letter from the Claimant's solicitors dated 10 February. Plainly that amendment must, in the unusual circumstances of this case, be allowed and I allow the Respondent's appeal against that part of the Registrar's Order.
The paragraph 9 amendment, however, raises a matter which could and should have been pleaded in the original Notice of Appeal. It is not a point dependent on the contents of the Claimant's Answer, and further, it seems to me, that it is not an application which could not be heard by the Carstairs Tribunal whereas I accept that the Claimant's application of 10 February was more properly dealt with by a different Employment Judge. In these circumstances I shall not permit the amendment under paragraph 9 and I affirm the Registrar's Order in this respect, although I shall later in this Judgment return to the question of that particular application.
The Substantive Appeal
I begin with Judge Lewzey's Order of 23 February. On a strict application of the Rules, either the Claimant's solicitor's letter of 10 February was an application by the Claimant under Rule 11, in which case Mr Beyzade is correct in submitting that the Claimant did not comply with Rule 11(4). That is common ground and requires that details of the application be served on the other party. Alternatively if, as the Claimant contends in her Answer, Judge Lewzey made the Order on her own initiative under Rule 12, at the instigation of the Claimant, in that case Rule 12(2) operates.
Analysing the provisions of Rule 12(2), where an Employment Judge makes an Order without giving the parties the opportunity to make representations (in fact representations were made here by the Claimant but not by the Respondent who was in ignorance of the matter) (a) the Secretary must send the party affected a copy of the order and a statement explaining the right to make an application under sub-paragraph 2(f), which in turn provides that the party affected by the Order may apply to have it varied or revoked.
Pausing there, Judge Lewzey did not specify in the letter of 23 February under which rule she was making her Order. Secondly, it was not intended that the order should, as is the normal practice, be served on the Respondent; no notice was to be given of the Order. In the event, due to what is described as an administrative error, a copy was served on the Respondent, immediately followed by an email from a member of the Tribunal staff, asking the Respondent to ignore it. Then, when the Respondent's application to have the order set aside was referred to the REJ she responded by ordering a blanket stay on the proceedings, thereby preventing the Respondent from having its application determined.
Thus far I entirely agree with Mr Beyzade that the Tribunal has signally failed to apply the Rules of Procedure by which it is bound. However, the circumstances are unusual.
The proper course to have followed would, in my judgment, be as follows
Disposal
The appeal is allowed; the stay imposed by the REJ is lifted so far as the Respondent's revocation application is concerned; that application shall be heard and determined in accordance with the principles outlined above.
In reaching these conclusions I have considered Mr Beyzade's submission that I should determine, first, the question as to whether the letters of 4 and 10 February should be disclosed to the Respondent, and secondly, determine the question as to whether or not Judge Lewzey's Order of 23 February should be revoked. I am not content to exercise my powers under Section 35(1) of the Employment Tribunals Act 1996 in order to answer those questions on appeal. In particular I think it important that the Metropolitan Police Service should be given the opportunity to make any submissions which they think are appropriate on the disclosure issue and on the revocation issue. It may be that events have overtaken this particular application.
Mr Beyzade tells me that he has been in touch with a DC Parr at Chingford Police Station as recently as 28 April and that officer indicated to him that the Claimant was required to provide a witness statement to police. Mr Beyzade also tells me in relation to the comment which he made in his email to the Employment Tribunal of 6 March that he inferred or assumed that the Claimant had already been given permission by the Tribunal to discuss her evidence with the police. If that assumption be correct then the issue for the Employment Judge, and I think it should be an Employment Judge rather than this Tribunal, is whether it is right that the Claimant should be discharged from her oath in order to give a witness statement to the police.
One further matter arose during the course of argument this morning and that is whether it would be appropriate, bearing in mind Judge Carstairs' ill health, for the hearing, which was only just into its second day before the Carstairs Tribunal, to be aborted and the matter in due course to be re-listed before a fresh Tribunal. That is a matter for the Regional Employment Judge to consider. I raise it because if that hearing was aborted then the Claimant would no longer be under oath and the problem, which has bought about this appeal, would be resolved.
Following my Judgment in this appeal Mr Beyzade made application to me for a stay of Judge Lewzey's Order of 23 February. I accede to that application exercising, my powers under Section 35(1) Employment Tribunals Act 1996 , so that insofar as no action has to date been taken in line with that Order, no further action should be taken until after the determination of the Respondent's application for revocation of that Order.
I direct that there should be a transcript of this Judgment and that it should be expedited.
Mr Beyzade finally makes an application for costs in the appeal. He submits that the only reason that this matter has been brought before the EAT is because the Claimant did not make a proper application in accordance with Rule 11(4) of the ET Rules below. That application for costs is misconceived. The question is whether the Claimant has acted unreasonably or otherwise in accordance with the EAT Costs Rule in defending this appeal. She has not. She has simply sought to rely on the decision of the REJ which was under appeal.
In any event, I am satisfied that if the Claimant's solicitor's letter of 10 February is properly to be construed as an application under Rule 11, there were good reasons why the Claimant's solicitor did not give the information required under sub-rule 4. For these reasons I shall dismiss the application for costs in the appeal.