I have recently come across a book called “A Short History of Bad Judges” by Graeme Williams QC. Two decisions of the EAT in June last year makes me wonder if a new edition is required.
The first case, Balcerzak v George Birchall Services Ltd (2023), is a case where the tribunal rejected a claim on the basis that the claimant had not supplied a valid ACAS Early Conciliation form with the ET1 form because the name of the Respondent on the ACAS form did not match with the name on the claim form. The only problem with the Employment Tribunal’s judgment was that, in fact, the names were identical! As the EAT judgment succinctly put it:
It is clear, in my judgment, from looking at those documents that the name of the prospective respondent on both of those is set out as follows: George Birchall Service Limited. There appears, on the documents before me, to be absolutely no difference between the names of the Respondents on both of those documents. I therefore allow the appeal because I consider that it is evident in this case that an error appears to have been made because the name of the respondent on the ET1 and on the EC certificate was identical.
– Paragraph 11 of the EAT judgment.
In short, the Employment Tribunal made a decision that deprived a claimant of their right to seek redress against their former employer for an imagined error on the claimant’s part. The judgment then proceeds to make an implication that the tribunal also failed to perform a checklist that should have avoided the mistake occurring.
It is a serious error on the part of the employment tribunal (and should – but won’t – cause pause as to whether decisions decisive to a case should ever be outside the hands of a judge) since I suspect this was an administrative error that was not picked up.
The second case is almost as bad. In Tanase v Barchester Healthcare Ltd (2023) the employment tribunal’s conduct of the case was baldly described as “procedurally incompetent” (para 3). The tribunal had concluded that an order it had made on 3 October 2022 had not been complied with and therefore the claim should be struck out.
There were however two rather fundamental problems with that approach. A strike out of a claim is possible if an order is expressly stated to be an “unless order” which is covered by Rule 37 – this is effectively a conditional judgment (e.g., “if you don’t do X by Y, then the claim is dismissed”) – however the order did not say this.
Second, in a separate email to the claimant the claimant was told the judge was considering striking out the claim under Rule 37. Rule 37(2) provides that any party issued such a warning can request an oral hearing to consider this issue and, if such a request is made the hearing must be listed before a decision is made. The claimant made a request under Rule 37(2) but, remarkably the judge did not list the hearing and simply struck out the case on 10 November 2022.
Thankfully in both cases, the procedural incompetence could be remedied as the claimant was alert enough to spot the issue and appeal. But, in the case of the second example especially, I can quite believe that some claimant’s would not be alert to the significance of the judge’s errors and so have been left with a unfairly dismissed claim.
As I mentioned back in September 2020 the increased transfer of judicial functions to legal officers only invites more cases of this sort – it is something every claimant needs to be alert to.
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