Daniel v Homerton Hospital Trust [1998] UKEAT 569_98_1412

EAT
Daniel v Homerton Hospital Trust
[1998] UKEAT 569_98_1412 · 1998-12-14
HIS HONOUR JUDGE J. ALTMAN: This is the adjourned preliminary hearing of the appeal of the Applicant from the decision of the Industrial Tribunal sitting at Stratford on 20 February 1998. This was a preliminary hearing in itself to determine whether the Tribunal had jurisdiction to consider a complaint of the Applicant which was presented out of time.The ground of the Originating Application was an allegation of discrimination on the ground of race. The Application was late and it was outside the three month time limit and the Tribunal considered whether it would be just and equitable to hear the complaint, notwithstanding the expiry of the limitation period.Very briefly, the history of the matter is that the Applicant began work for the Respondent, that is the employer, in 1974. She worked for them for approaching 22 years. She was a long serving employee. On 23 January 1996, an incident took place which formed the basis of the complaint of racial discrimination on that date. As a result of the incident, the employee was suspended. On 23 February 1996, there was a disciplinary hearing and on 7 August 1996 that hearing went to appeal. Although on the face of the allegations, there does not appear to be any specific complaint of a fresh act of discrimination on that date, the Tribunal, to a certain extent, found in favour of the employee, and took as their date for the start of the running of time, not the date that she had alleged of 23 January 1996, but the date of the appeal hearing.On 7 November 1997, some fifteen months after the appeal hearing, the Application to the Industrial Tribunal was lodged. The hearing, as I have already said, before the Industrial Tribunal was on 20 February and the decision was promulgated on 4 March, and the Applicant promptly appealed on 22 March. The matter came, as all appeals do now, to be considered by way of preliminary hearing on 18 May 1998 and the circumstances of the appeal were set out in the judgment of Mr Justice Lindsay to which we refer. There was an issue of fact in relation to the question as to whether the learned Chairman took into account the appropriate circumstances and facts in order to decide whether discretion should be exercised to permit the originating complaint to proceed. The issue was this, the employee, Ms Daniel, who had appeared in person on 20 February, claimed that she had not known of the existence of the time limit. She asserted through her counsel who appeared for her before Mr Justice Lindsay, that she did say on oath that she had not known at any relevant time of the three month time limit.In order to deal with that issue and before concluding the preliminary hearing, Mr Justice Lindsay therefore adjourned the matter to ask for the Chairman's notes of evidence, if any, on that issue.On 6 July 1998, a letter was sent from the Industrial Tribunal at Stratford in the following terms:
"I now enclose Mr Leonard's notes of evidence as requested. He further directs me to say that his notes contain no reference to an awareness that the Applicant was unaware of the existence of a three month time limit."
We have had the advantage of the case on behalf of Ms Daniel being presented today by Mr Oldham, who appears as a member of the Employment Law Appeal Advisory Service, and we would wish to record our enormous debt, not only that he was willing to make himself available, but for the very great assistance that he has given us, and certainly put this matter as forcefully as the issues permits it to be put.In Ms Daniel's mind, there remains this issue. She says that she remembers telling the Chairman that she did not know about the time limit. The Chairman's notes are silent on this point. Mr Oldham urges us to permit this matter to proceed to a court hearing and also to set in train some process for determining the difference between the notes on the one hand and Ms Daniel's recollection on the other.The first suggestion in terms of logic, albeit it was mentioned last, was that Ms Daniel could give evidence today in support of her statement that she remembers telling the Chairman, but that is unnecessary. For the purposes of today's hearings, we accept that Ms Daniel's recollection is that that is what she said. We have been helpfully referred to two cases before the Employment Appeal Tribunal: Greenaway and Harrison v Wildes (1994) IRLR, Page 380 was the first, and that considered the way in which to deal with an allegation of bias against a Chairman and at page 383, paragraph 16, there was some discussion in that judgment of the process of asking a Chairman and/or members of the Tribunal for comments or evidence and considering the implications of it.We have also been referred to the case of Roberts v United Friendly Insurance Plc , EAT/436 of 1995 an unreported decision of the Employment Appeal Tribunal. The hearing was on 13 June 1996 and judgment was delivered on 10 September 1996. In that case, an allegation of bias, and really misconduct by the Chairman and one of the lay members, was being considered and having asked for comments from the Tribunal and its members, consideration was given as to whether further steps should be taken to obtain evidence which could ultimately lead to an appearance. The judgment of the Employment Appeal Tribunal was that this response from the Tribunal should be treated effectively as definitive on this matter. They declined to follow some obiter remarks of Judge Hague QC in the Greenaway case and set their face against the calling of evidence.In the Greenaway case, the obiter remarks were really to highlight the difficulty that arises, in the words of the judge "if the other members of the Tribunal are not to be permitted to comment about allegations in which they are directly involved". Then the judge goes on to suggest that where there is a serious conflict, and the material facts are alleged to support a bias claim, it would be unavoidable that evidence should be given before the Employment Appeal Tribunal.It is in no terms a satisfactory situation in many ways. It cannot be satisfactory for a Chairman to have to come to give evidence and indeed, one wonders in in relation to bias what in real terms is going to be said in such a process that could assist an Applicant. On the other hand, if there is a genuine allegation of bias and all that happens is that the Tribunal Chairman gives some comments, and the Employment Appeal Tribunal simply accept those comments and rejects the allegations of bias, that could in a serious case perhaps leave the Applicant with a sense of grievance that the matter has not been fully investigated. We have come to the conclusion that inevitably there is a degree of artificiality.The procedures of an Industrial Tribunal (now the Employment Tribunal) include the process of note taking by the Chairman. There is no provision in the statutory framework for any formal recording of the procedures of a Tribunal or of its evidence. The notes are the Chairman's own notes, but he is of course obliged to disclose them where they are required for any purpose. On top of that, an informal procedure has grown over the years of the Employment Appeal Tribunal's requesting a comment from a Chairman or indeed from members, where a particular point arises upon which such comments may assist in their resolution. But here, before us today, is a simple issue as to what was the evidence.It seems to us that the notes must be regarded as being the evidence for the purposes of an appeal. The only exception that we could envisage to that, would be if the parties themselves either agreed together their own notes of the evidence, or were able to submit to the Chairman unilaterally or together, the notes that they had taken which the Chairman was then prepared to adopt, a process which happens in a very similar way for instance in the County Court or did so, particularly before tape recordings were widely introduced. But we cannot see any basis for seeking to establish a parallel process of identifying evidence, outside the framework emanating from the Chairman's notes. To do so, it seems to us, would be to open up an area of trying to investigate what happened before a Tribunal in many cases. It seems to us the situation is quite different from the situation where outside the actual process of giving and recording evidence, there are allegations as to the way in which a Tribunal has behaved, such as by misconduct or derogatory remarks or that sort of thing, which are not matters that would be pursued through investigation of the notes of evidence, and in relation to which some informal procedure has grown up over the years. What is being suggested here is that the process of note-taking and recording of evidence should be set aside by some alternative process and we cannot see that that would be useful.We do not consider that it would be proper. Employment Tribunals were set up as informal Tribunals. They were (presumably deliberately) not made courts of record, though intended to receive and adjudicate upon evidence informally. The closest to any record is the Chairman's notes and we would set our face against anything which encroached upon that system. Inevitably, there is going to be some artificiality and inevitably an Applicant such as Ms Daniel, who has a distinct recollection of saying something, is going to have a sense of grievance to some extent and she is left feeling that there is no way her appeal is being assessed on the basis of what she believes was the true evidence before the Tribunal. The alternative it seems to us, is so wide open that it cannot form part of the process of appeal from the Industrial Tribunal. In any event, we ask ourselves what would such a process involve? That process would involve, we suspect, the Chairman saying that "yes, these are my notes and I have no recollection or record of anything else." We cannot imagine that the Chairman, in this case for instance, who would have seen that the judgment of Mr Justice Lindsay would have known what was at issue and would have been able to say anymore. Whatever is done, we find it difficult to imagine a situation which would get any closer really to resolving this issue of fact and the situation as it exists today.The conclusion we come to therefore is that we feel that in approaching this appeal, we should take as a record of the evidence given, the Chairman's notes of evidence. We say that because there has been no alternative record put forward for the Chairman to consider, other than the contrary assertion of the Applicant. Accordingly, having dealt with that issue, we turn essentially to the appeal and whether there is an arguable point of law, such as to justify this matter proceeding to a full hearing of the Employment Appeal Tribunal. The decision of the Chairman, sitting alone, is set out in his extended reasons in which the date of the complaint and the final date are adverted to. The law is set out in paragraph 5 and the reasons given for the delay in brief form are set out in paragraph 6. It discloses that the Applicant attributed a failure to act through the stress and anxiety with the disciplinary process, that she continued to work as a midwife and discharge her responsibilities. The Chairman referred to the fact that the Applicant had sought advice from a solicitor, pending the disciplinary appeal and in October 1996, some two months' after the appeal, had sought advice from the Citizens Advice Bureau. But she had then become ill, involving major surgery and a period of recuperation, returning to work in March 1997.In paragraph 8, the learned Chairman set out his analysis of that in the following words:
"It is entirely understandable that Ms Daniel had suffered stresses and strain as a result of the disciplinary process and that such feelings would be exacerbated by the belief that her race has formed the reason for that process and its conclusion. However any argument that the stress and strain had a marked effect upon her ability to conduct her affairs is not supported by the fact that she continued to work, to a satisfactory standard, to discharge her responsibilities. She was aware that expert advice was available and how to seek it; indeed she did seek advice at a time when the present complaint would have been in time. The delay in this case is not a short or significant one...I have given careful consideration to the period of illness between November 1996 and March 1997. The explanation advanced by Ms Daniel could not reasonably be treated as a satisfactory explanation for the failure to act sooner.
It seems to us that those reasons exemplify the process of reasonable exercise of discretion. The Tribunal had directed itself to the law and the facts applicable and made findings of fact which were within the discretion of the Tribunal to find. We note that there was not specific averment in the decision of the Tribunal that the Applicant knew of the time limit and that perhaps is some, at any rate, matter of note when considering the issue that is now being raised before us. It is not for us to say what we would have done in this situation, it is not for us to exercise any value judgment upon that evidence or to exercise our discretion in order to give the Applicant the right to proceed with her complaint. Our task is simply to ask that as a matter of law, is there an argument that in the exercise of their discretion, the Tribunal acted contrary to the law in one of the recognised ways.In consideration of the decision and in light of all the helpful arguments that have been placed before us, for which we are indebted, we are driven to the conclusion that there is no arguable point of law in this appeal and it must therefore be dismissed at this stage.