Sodexho Ltd v Gibbons

EAT: Judge Peter Clark: 29 July 2005

The claimant was ordered to pay a deposit, pursuant to rule 20(1) of the Employment Tribunals Rules of Procedure 2004, as a condition of being permitted to continue with his proceedings. The order was not complied with within the 21-day time limit and an order was made striking out the claim under rule 20(4). On the claimant's application for a review of the strike-out order, a chairman found that the deposit order had not been received by the claimant's solicitors as the claimant had entered the wrong post code when giving his solicitors' address for service of documents and she allowed the review, under rule 34(3)(a) and (e), on the grounds that the decision had been wrongly made as a result of an administrative error, namely the insertion of the wrong post code, and that it was in the interests of justice to review it; revoked the strike-out; and varied the deposit order to restart the time for payment from the date of her order.

The respondent appealed.

JUDGE PETER CLARK held:
(1) A strike-out order made by a chairman under rule 20(4) of the Employment Tribunals Rules of Procedure 2004 was a final judicial determination and, accordingly, a "judgment" within rule 28(1)(a) and reviewable under rule 34(1)(b). The provision for a review on the ground that a decision "was wrongly made as a result of an administrative error" in rule 34(3)(a) was not limited in any way and was, as the chairman found, capable of covering an error of the type made by the claimant. In determining, pursuant to rule 34(3)(e), that "the interests of justice" required the strike-out order to be reviewed, the chairman had correctly adopted an approach consistent with the overriding objective, in regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, to deal with the matter justly, by balancing the interests of both parties. The chairman was, therefore, entitled to carry out a review of the strike-out order under rule 34(3)(a) and (e) and to revoke it.
(2) A deposit order under rule 20(1) was an "order" within rule 28(1)(b) and not a "judgment" within rule 28(1)(a), and as such not susceptible to review by virtue of rule 34(1), but it could nevertheless be revoked or varied by a chairman under rule 10(1)(2)(n). Accordingly, it would have been open to the chairman under that provision, read with rule 10(2)(e), to vary the original deposit order by extending time for the claimant to lodge his deposit, notwithstanding that the time for payment had expired. The appropriate course, in order to deal with the case expeditiously and fairly, was for the appeal tribunal, pursuant to its powers under section 35(1) of the Employment Tribunals Act 1996, to exercise that discretion and extend time for payment of the deposit, given that there had been a material change of circumstances since the original order was made, namely that the order never reached the claimant.

The appeal was dismissed.

Appearances: Alex Lock, solicitor (Beachcroft Wansbroughs, Bristol), for the appellant respondent; Nicholas Dugdale (Abbott Lloyd Howorth, Maidenhead) for the claimant.