Employment Flash - 2nd October 2008
The importance of being heard and not just seen...
Zeynalov v BP Exploration (Caspian Sea) Limited [2008] UKEAT 0086 08 0307
Z had his second set of proceedings struck out by the Employment Judge without an oral hearing despite his requesting one. An oral hearing is an entitlement under rule 18(6), Schedule1, 2004 Regulations, where amongst other matters a strike out is being contemplated and an oral hearing is requested by one of the parties.
The EAT (HHJ Burke QC) had no difficulty in concluding that the Employment Judge had made an error of law (a conclusion that BP had arrived at). BP urged the EAT to determine the merits of the strike out for itself on the basis that though the Employment Judge had made a procedural error she had come to an unarguably correct decision on the merits. Following Bache v Essex County Council [2000] IRLR 251 this was a course open to the EAT: the response to the finding of an error in procedure should be proportionate; if the appeal tribunal is sure that the result of the case is unarguably right and that the outcome would have been the same, even if the error had not occurred, it would be unnecessary, unjust and disproportionate to remit the case to the tribunal for a rehearing. The error in Bache was that the Tribunal had barred an unqualified representative from continuing to act for B; their view was she would do just as well if not better without him. The Court of Appeal agreed that the error did not make any difference to the outcome.
The EAT declined to apply Bache. The EAT accepted that BP's case on the strike out appeared in a number of respects to be a very strong one, though there may have been weaknesses in the Employment Judge's decision in relation juridictional matters. The view taken by the EAT was that the absence of an oral hearing at all was so major a departure from the overriding objective that Bache was to be distinguished and could not properly be applied.
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