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MC Miller v. Lambeth Primary Care Trust


Employment Appeal Tribunal

A claimant whose claim had been struck out and who had not been notified of the hearing of the review of that decision had, in the circumstances, been deprived of a hearing on the issue of why her claim should not be struck out, and the matter was remitted for review.
The appellant employee (M) appealed against the striking out of her claim against the respondent employer (L) for want of prosecution. M's claim had been struck out by an employment judge and his decision had been upheld on a review conducted under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.1 para.34. M had not attended the review and it was common ground that she had not received notice of it. She had at one stage been represented by an organisation known as "Community Law Project" (CLP). Though some communications from the tribunal had gone direct to M, some, including the notice of the review hearing, had not. The reviewing judge found that although M had never informed the tribunal that she was no longer represented by CLP and had not asked that correspondence be addressed to her, it ought to have been communicating direct with her rather than with CLP. He did not, however, find that to be a failing that justified a review of the judgment, M, in his view not having shown much urgency in the prosecution of her case following her request for a review. M submitted that she had been denied a hearing on the issue of why her claim should not be struck out.
HELD: It was exceptional for a claim to be struck out for want of prosecution, Abegaze v Shrewsbury College of Arts & Technology (2009) EWCA Civ 96, (2010) IRLR 238 followed. Where a party did not appear at a hearing the tribunal was not, as a matter of law, required to make enquiries to see where they were, but it was a feature to be considered on any review. Given the judge's finding that communications should have been sent to M herself, and given the fact that she had not received notice of the review, it had to follow that there were grounds for a review. Having found that the tribunal should have, but had not, communicated directly with M or notified her of the review hearing, it was not right for the judge to criticise her for failing to take any step herself. That alone called for a review and the matter was remitted to an employment judge so that a review could take place.
Appeal allowed

LTL 26/8/2009

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