Nwachukwu v London Borough Of Brent [1998] UKEAT 1405_97_1601

EAT
Nwachukwu v London Borough Of Brent
[1998] UKEAT 1405_97_1601 · 1998-01-16
MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal of an Interlocutory nature. That decision is contained in a letter which the Industrial Tribunal sent to the parties and dated 17 November 1997.The case itself is one in which the Applicant, Mrs M Nwachukwu, has brought a complaint against her former employers, the London Borough of Brent, alleging that she has been unfairly dealt with by them, in terms of the way her employment came to an end. She presented her IT1 within the requisite three month period of what she then alleged to be the effective date of termination of her employment. Mrs Nwachukwu said that she had been unfairly dismissed, summarily dismissed in breach of contract and she claimed compensation for those matters and for hurt feelings.Mrs Nwachukwu's former employers put in a response to that application, accepting that the Applicant had been dismissed, averring that the reason for the dismissal was her gross misconduct, and that she was dismissed following a disciplinary hearing which took place on two identified days. They put it in this way:
"2. ..... She was found to have failed to follow child protection procedures, thus putting children in the Respondent's care at risk.
3. The Respondent's disciplinary procedure provides for summary dismissal in cases of gross misconduct."The Industrial Tribunal made an Order in response to an application that the Applicant should provide further particulars of her grounds of complaint. In the course of providing those particulars, she made an allegation that she had been discriminated against, unlawfully, by reason of the summary dismissal and that she was subjected to racial harassment by the unreasonable and offensive behaviour of management.At the hearing before the Chairman for directions on 7 November, the Chairman directed that in relation to the allegation of race discrimination - as it had not previously been raised in the proceedings themselves - if the Applicant wished to pursue that complaint, she should lodge a fresh Originating Application when the Industrial Tribunal would be able to consider any question of time limits. The reason why they were not prepared to allow the Originating Application to be amended, was because by granting that application they would be foreclosing any argument that the Respondent might wish to advance as to why it was not just and equitable to extend time. They were not pre-judging the issue as to whether she should be allowed to present a case on race discrimination at the hearing, they were simply, by this process, organising their work in such a way that the time issue could be dealt with discretely. The Tribunal said this:
"4.i. The Appellant left her employment with the Respondent on 24th April 1997 and by Originating Application dated 23 July 1997 make complaint of unfair dismissal- summary dismissal, breach of contract and hurt feelings."
Mr Okolo, on her behalf, says that by saying that, the Industrial Tribunal have effectively upheld the Respondent's claim that the Applicant was not dismissed. It seems to us that that is a wholly misguided point. It is obvious that the Respondents are not averring that the Applicant was not dismissed and therefore the Chairman cannot have been upholding such a claim which had not been made. It is the Respondent's case, as I have already indicated, that she was indeed dismissed. It seems to us that the language which was used in that first sentence could not justifiably, or reasonably, have led either the Applicant or her advisor to believe that the Industrial Tribunal had foreclosed any argument which was open to her on her Originating Application.It is then said that the learned Chairman erred in law in striking-out or purporting to strike-out the Appellant's allegation of constructive dismissal. Again that seems to us to be quite unsustainable as an argument. As we understand the position, Mr Okolo, on her behalf, will wish to argue at the Industrial Tribunal that although she was dismissed by her employers, (as from 24 April 1997) she was treated in such a way that she would have been entitled to have walked out from her employment and then alleged constructive dismissal. That argument is still open to her and she will be able to adduce evidence to show, if she wishes to do so, that her employers have treated her badly. But so far as the claim for unfair dismissal is concerned, it is of no consequence whether it is a dismissal as alleged and averred by the employers, or whether it was a constructive dismissal which would have happened but for the dismissal.It seems to us that nothing that the Industrial Tribunal Chairman said about constructive dismissal was other than what the position actually was, namely, that her allegation of constructive dismissal could not now be pursued because it is only possible for a person to be dismissed once.It is then said that the Tribunal erred in law in the way they dealt with the discovery of specific documents. It seems to us again, that this is a misconceived appeal. There is one question which we understand the Applicant would wish to have answered before the case comes on for hearing, which is: whether it is the Counsel's contention that there was any restriction in the care order that was made in relation to the particular infant, in respect of whose care the Applicant was criticised? In particular, whether there was any restriction of contact between the mother and that child? If the Appellant requires answers to those questions before the hearing, we have no doubt that the employers will give consideration to answering them voluntarily. If they do not do so, it will be open to the Applicant and her representative to make an application to the Tribunal directing an answer to that question and if they are dissatisfied with any decision made, then there will be an appeal to this Court.We are wholly satisfied that this appeal was misconceived. Mr Okolo, with great respect to him, has completely misunderstood the purport and effect of this Tribunal's Interlocutory ruling. His last application was that we should order the Notes of Evidence to be provided. Again, it appears to us that Mr Okolo has misunderstood what Notes this Court will order and in what circumstances. There was no evidence given to the Industrial Tribunal at this Interlocutory hearing, therefore there were Notes of Evidence which we could order. It is not and never has been the practice of the Employment Appeal Tribunal to order a Chairman to provide his/her own personal notes which may have been made in a notebook during the course of any Interlocutory application. That was a misconceived application as well.Accordingly we have no hesitation in dismissing what appears to us to be a hopeless appeal.