Fenwick v Camden & Islington Health Authority [1998] UKEAT 1335_97_2711

EAT
Fenwick v Camden & Islington Health Authority
[1998] UKEAT 1335_97_2711 · 1998-10-06

JUDGE HICKS QC :

The Appellant, Mrs Miriam Fenwick, is a Filipina who was employed by the respondent Health Authority as a patient data care assistant from 29 April 1991 until she resigned on 5 October 1995. On 18 December 1995 she lodged an application to the Industrial Tribunal (as it then was) complaining of racial discrimination and "constructive dismissal (involuntary resignation)". The latter complaint was in substance one of unfair dismissal and was dealt with as such.At the hearing of Mrs Fenwick's application the tribunal first dealt with what was described in the submissions to us as a "jurisdiction issue" under section 68 of the Race Relations Act 1976, which provides in substance that a tribunal shall not entertain a complaint of racial discrimination not presented within three months of the act complained of, unless the tribunal considers it just and equitable to do so. Mrs Fenwick's case was that there were "continuing" acts or omissions extending until after 18 September 1995 which brought events occurring on and before that date into consideration. The tribunal heard evidence and submissions on the jurisdiction issue, found that there was no continuing act or omission and ruled that "the only matters in respect of which we would be able to make a finding on race discrimination would be those after 19 September although the earlier matters were of probative value" (Extended Reasons, near top of page 11 of our file). They could find no reason to extend the period on the basis that it would be just and equitable to do so.The tribunal then proceeded to hear both the race discrimination and the unfair dismissal complaints on their merits and dismissed each of them.The Notice of Appeal, as finally amended, relies on two grounds, both relating to the conduct of the hearing rather than to any substantive decisions. It is not therefore necessary for us to rehearse the history of Mrs Fenwick's employment or the detail of her complaints against her employer further than we have already done. The grounds of appeal are:
"(a) The Tribunal refused to allow the Appellant to depart from her written statement of evidence to adduce further evidence in support of her claim for unfair dismissal and race discrimination. (b) The Appellant's representative was not given the opportunity to make a closing speech contrary to rule 9(2) of the Industrial Tribunals (Constitution of the Rules of Procedure) Regulations 1993."
A substantial quantity of evidence and other material relating to the first ground was before us, but we need not review it in any detail because in the end the essential facts were not in dispute. Mrs Fenwick commenced her evidence on the jurisdiction issue by reading from her Originating Application and from an affidavit incorporated into it by reference. The members of the tribunal and Mr Ciumei (counsel representing the employer), of course, had copies of those documents. At some point Mrs Fenwick began to interpose additional evidence by reference to other notes which she had with her. Mr Ciumei objected. There is a difference of recollection, or perhaps of impression, as to whether that was truly an objection to the evidence as such or a complaint of failure to disclose the notes, but that difference is of no significance because what matters is the chairman's ruling, and about that there is no doubt or dispute. He excluded any evidence going outside the Originating Application and its supporting affidavit. His contemporaneous note reads:
"Chairman says for purpose of time point just read the affidavit. Might be able to deal with other points later."
It is common ground that Mrs Fenwick was confined in that way in her evidence on the jurisdiction issue but that she was allowed to give further evidence after the ruling on that issue, when the tribunal was dealing with her complaints on their merits.In our view the commencing point is that, in principle, a party is entitled to adduce any relevant and admissible evidence she chooses in support of her case. A court or tribunal may have and exercise jurisdiction to make the exercise of that right conditional upon compliance with suitable procedural requirements, such as prior disclosure, but there was no suggestion that any interlocutory direction to that effect had been given here. Nor was there any suggestion that the excluded evidence was irrelevant or inadmissible.Mr Ciumei sought to resist this ground of appeal in a number of ways. In the first place he pointed to the fact that on the jurisdiction issue Mrs Fenwick was cross-examined at some length, questioned by members of the tribunal and re-examined. But if cross-examination went outside the bounds of evidence in chief that was for the purpose of attacking, not advancing, her case, while re-examination is limited to points raised in cross-examination and we were not directed to any questions from the tribunal which could have gone any significant way towards making good the effects of excluding her additional evidence. There is therefore nothing in this point.Next Mr Ciumei relied on the fact that there was no limitation on Mrs Fenwick's freedom to give any evidence she wished at the stage of the hearing on the merits. But that was too late to affect the jurisdiction issue; the ruling had been delivered and was not reconsidered. Moreover the tribunal had made it clear by that ruling, as quoted above from its Extended Reasons, that evidence of "early matters" would be taken into account only for limited, if rather ill defined, purposes.Then Mr Ciumei complained that particulars of the additional evidence which Mrs Fenwick would have given have never been supplied. But in fact the employer does have information about some at least, perhaps most or all, of what would be involved, for the very reason advanced by Mr Ciumei on the previous point, namely Mrs Fenwick's freedom to give all the evidence she wished at the merits stage. In any event a party has no inherent right to see his opponent's evidence in advance; if that was desired appropriate directions should have been sought.Mr Ciumei further submitted that it would be futile to remit the application for a fresh hearing if there were no substance in this point. He submitted that the appeal should not succeed unless the additional evidence was "likely to have an important influence on the result" ( Kingston v British Railways Board [1984] ICR 781 , Wileman v Minilec Engineering Ltd [1988] ICR 318 ) or unless "some substantial wrong or miscarriage of justice" would otherwise be occasioned ( Rowell v Pratt [1938] AC 101 ).In fact Mr McCarthy, for Mrs Fenwick, was able to point to examples in her affidavit of general statements of which she was prevented from giving particulars and examples during the preliminary stage as she would have wished and which were on their face matters of potential significance. There is therefore no reason to suppose that the point is insubstantial. We are, in so far as that is a relevant test, clear that a substantial wrong would be occasioned if the tribunal's decision were allowed to stand.We also reject this argument, however, on the more fundamental basis that the authorities relied upon for the onerous standards of probability advanced by Mr Ciumei have no application to the issue to which he seeks to apply them. Wileman v Minilec Engineering Ltd concerned an application to admit fresh evidence on appeal to this tribunal, and applied the well-known tripartite test applicable in the Court of Appeal and enunciated in Ladd v Marshall [1954] 1 WLR 1489 , as did Kingston v British Railways Board to the analogous situation of an appeal seeking remission to enable fresh evidence to be called at a rehearing. That that test, from the second limb of which the words relied upon by Mr Ciumei are taken, is not applicable to the situation before is not only clear to us in principle; it becomes self-evident by quoting the first of its three requirements, which is that "the evidence could not have been obtained with reasonable diligence for use at the trial" ( Wileman v Minilec , at page 321H, quoting from Ladd v Marshall ). That manifestly has nothing to do with a situation in which the ground of appeal is that the evidence was tendered but wrongly excluded. Rowell v Pratt concerned the even more remote question whether a new trial should be ordered because the appellant had been unable to secure the production at trial of a document in the hands of a third party.Finally Mr Ciumei submitted that since Industrial Tribunals are not bound by the strict rules of evidence they have a discretion to exclude evidence, notwithstanding that by those rules it is relevant and admissible. We reject that submission. The rule that tribunals are not bound by the law of evidence as it applies in courts of law is familiar, but it is equally well understood that it operates by way of relaxation, not of restriction. If authority is needed for that proposition it is to be found in the case cited by Mr McCarthy: Rosedale Mouldings Ltd v Sibley [1980] ICR 816 . Delivering the judgment of this appeal tribunal in that case Talbot J said:
"It is also the experience of each member of this division of the appeal tribunal that over and over again it has been stated that the strict rules of evidence do not apply to proceedings before an industrial tribunal.
But that leaves a matter of some importance to be decided: whether that gives a discretion to an industrial tribunal to refuse to admit evidence which is otherwise admissible and probative. In our judgment, there is no such discretion in an industrial tribunal to refuse to admit evidence which is admissible and probative of one or more of the issues before it. That opinion is sufficient to dispose of this appeal because, in our judgment, the industrial tribunal were wrong in law in holding that they had a discretion to refuse to admit such evidence and in so refusing at to admit it."We therefore uphold the first ground of appeal. That entails that the complaint of racial discrimination must be remitted for rehearing. It does not, however, release us from the need to consider the second ground, since the hearing of the complaint of unfair dismissal was not affected by the erroneous ruling which gave rise to the first ground.Unfortunately the second ground is the subject of a sharp conflict of evidence (although "evidence" is not strictly an accurate description of all the material before us), and illustrates vividly the unsatisfactory situation in which this appeal tribunal is put when require to reach disputed decisions as to what happened during the hearing below. We have affidavits from persons present, but they were not cross-examined, and the response of the chairman to the Appellant's evidence, which although described as "comments" is in fact the chairman's account of what happened. We also have what should be the primary source for matters included in them, namely the chairman's notes of evidence, but unhappily in this instance they give rise to one of the difficulties which we face.The relevant passage in Mrs Fenwick's affidavit reads as follows:
"8. Towards the end of the case the Chairman explained that the Respondent would sum up first and then my advocate would have the chance to make a closing speech. The Chairman qualified this by saying that he, the Chairman, would make the closing submissions but my advocate would be allowed to make any points he felt the Chairman had not covered at the very end.
9. The Respondents Counsel made a lengthy closing speech. After he had finished the Chairman started summing up on my behalf. He had only been speaking for a few minutes. He said something like, "This lady has been mentally scarred by what has happened". Immediately the Respondents Counsel interrupted and said, "If you bring up the Applicant's sickness we will appeal". The Respondents solicitor then went back over the whole case. He went back over the whole evidence. This went on for about 90 minutes, at which point the Chairman said that there would be an adjournment for 1 hour. The Tribunal adjourned and myself and my advocate went into the Applicant's waiting room. After about 1 hour the Chairman came to see us and said, "We will let you know the decision in a couple of weeks". Myself and my advocate were extremely surprised; we had expected to be called back in to the Tribunal hearing, and for the case to continue, i.e. for the Chairman to continue his summing up and then for my advocate to make any additional points he and I felt were necessary. This simply did not happen. Basically, what happened was that the Respondents Counsel interrupted the Chairman when he had just started his summing up. The Respondents Counsel went on for about an hour and a half and then the case finished."Mrs Fenwick's representative at the hearing, Mr Nolan, gives a substantially identical account in his affidavit.There is an affidavit by Mr Dent, the employer's solicitor, who was also present. The relevant passage reads as follows:
"The hearing then adjourned for one hour for lunch and re-commenced at 1.45 p.m. for closing submissions. Mr Ciumei then made his closing submission which commenced at approximately 1.50 p.m. and stopped at approximately 2.40 p.m. This was a full submission because Mr Ciumei set out the law from both the Appellant's and the Respondent's point of view. For example, he addressed the Industrial Tribunal is some detail on how they should consider the claim of constructive dismissal, reminding them that they should also consider a 'last straw' argument. The Chairman then invited Mr Nolan to make his closing submissions and he directed the Chairman to a section of one authority that had been submitted and said he had no further submissions to make. At no time did the Chairman "sum up" the case on behalf of the Appellant."
The chairman's comments on the Appellant's evidence on this point are as follows:
"At no time did I indicate that I would make closing submissions for the Applicant. The Respondent's Counsel did in deed make lengthy submissions. At one stage I observed that the Applicant was saying that she had been scarred by what had happened at work. Counsel took the view that the Tribunal had made a finding of fact to that effect which was not the case.
The evidence was completed at 12.40 on the second day. In those circumstances it is more than likely that the submissions were heard after lunch. I have not timed the length of the Respondent's Counsel's submissions but I am sure that it did not go on for anything like 90 minutes. When Mr Nolan came to make his submission he merely referred to one authority which he invited us to consider. The decision was reserved."We observe that although Mr Dent makes no reference to perhaps the most circumstantial point in the Appellant's evidence - the reference to "mental scarring" - the chairman's comments accept that it occurred and did so during closing addresses. Mr Ciumei, however, told us that his recollection was that although something of the kind occurred it did so during evidence, not submissions.The chairman's notes of this stage of the hearing read as follows:

" Submissions

Mr Ciumei spoke for approximately half an hour.Mr Nolan only made one point. He invited the Tribunal to look at a photocopy of page 224 from a book by Waltons & Morse. He suggested we had a good look at it.The Chairman did not deter Mr Nolan from making any further submission nor did he give him any reason to believe that any contribution that he proposed to make would not be given the fullest consideration.I hereby certify that these notes of evidence are made up from my notes which contain abbreviations, such notes having been taken at the hearing on 5-9 September 1997."Mr McCarthy submitted that the final paragraph of the chairman's notes, before the certification, cannot be contemporaneous. Certainly that paragraph, and indeed the whole of this section, are very different in style from the remainder of the notes, which (whether noting evidence, submissions or the tribunal's own rulings) adopt the familiar form of a staccato "telegraphese" without main verbs. The final note of evidence, of the re-examination of the employer's last witness, is entirely typical:

" Re-examined

Not ware of further harassment. First job to investigate. Had to speak to Patel with details."That criticism, although entirely understandable, places us in the acute difficulty that it has by its nature arisen after the chairman was asked to comment on the matters raised by the appeal and has therefore not been put to him. We therefore make no finding of fact as to when this part of the notes was made, although we do take the opportunity of emphasising our understanding that such notes should be faithful transcriptions of what was written at the time, with such editing only as is required to elucidate abbreviations or similar parts of the record intelligible to the maker but not to others. We do, however, take into account that the note does not address the gravamen of Mrs Fenwick's complaint, which is that following (and possibly as a result of) Mr Ciumei's objecting to the chairman's "mental scarring" phrase and having, in effect, a second speech, there was what Mrs Fenwick and Mr Nolan thought was an adjournment but was in fact the tribunal's retirement to consider and arrive at a decision.We do not pretend that that in these circumstances it is possible to arrive at confident findings of fact on all the points in issue, indeed we protest that by the nature of the material before us it is not, but we have come to the clear conclusion that there was some reference by the chairman to "mental scarring" during the part of the hearing intended for final submissions, and that it elicited an objection on some ground from Mr Ciumei. That being so, and taking into account all the remaining circumstances, as best we can on the material we have, we conclude, on the balance of probabilities, that Ms Fenwick has established her second ground of appeal.The whole application must therefore be remitted for rehearing, and we consider that in the circumstances that should be before a newly constituted tribunal.