Robins v London Borough Of Merton & Anor [1999] UKEAT 1172_98_0803

EAT
Robins v London Borough Of Merton & Anor
[1999] UKEAT 1172_98_0803 · 1999-03-08

JUDGE D M LEVY QC :

This is a preliminary hearing of an appeal by Mrs M.A. Robins ("the Appellant") against a decision of an Employment Tribunal sitting at London (South) on 23, 24 and 26 March and 18 May 1999 with a further hearing on 25 June 1998 (in Chambers). The Appellant was a mathematics teacher at Rutlish School, with additional duties as a Contingent Commander of the school's Combined Cadet Force from September 1993 till her employment ended as a result of her resignation in March 1997. She then made an application to an Employment Tribunal, which after the hearing, dismissed the claims made by the Appellant. The decision was entered in the register and sent to the parties on 30 July 1998. The unanimous decision of the Tribunal was that:
"(i) the Applicant was not discriminated against on grounds of sex;
(ii) the Applicant was not victimised contrary to the Sex Discrimination Act 1975;

(iii) the Applicant was not constructively dismissed."

Against that decision the Appellant lodged a Notice of Appeal dated 7 September 1998 with a manuscript text running to 16 pages as to the matters about which she wished to appeal. She supported her Notice of Appeal by a number of other documents on which she addressed us this morning for rather more than an hour, with clarity, firmness and restraint. Unhappily for her, however, save for one point to which we will return, in our judgment what she wishes to appeal against are adverse findings of fact made by the Tribunal, rather than points of law which can properly be raised on appeal. In our judgment the findings of fact made by the Employment Tribunal properly arose from the evidence and cannot be the subject of a successful appeal.The four central points to the Appellant's submissions to us were these. First she was not paid monies in the 1995/1996 financial year when monies could have been paid to her. In that connection she has referred us to page 67 of our bundle which sets out the entitlement to pay of CCF Officers (Combined Cadet Force Officers) of whom she was one.It is apparent from reading the entitlement to pay, to which we were referred, that the Headmaster of the school did have a discretion to order monies to be paid to her, but in the context of the Extended Reasons, it is clear that the Tribunal validly decided that the monies were not payable to her. Insofar as this claim alleged sexual discrimination, in paragraph 16 of the Extended Reasons, the Tribunal said:
"16. ... We found that there was no evidence of a regime of sex discrimination, nor could we say on the facts that we had found, that there was continuing discrimination against the Applicant. We noted that it was the Applicant's case that throughout the history of her employment, apart from a very short period initially, she had been subjected to constant discriminatory treatment. We do not find that that had occurred. We have looked at each individual allegation on its own and cumulatively because we are aware of the fact that sometimes it is necessary to look at the inter-action of various incidents and factors and not simply to consider each individual incident in isolation. Adopting that approach, we were still unable to find any basis upon which the Applicant could legitimately complaint that she had been less favourably treated on grounds of her sex."
These are findings which they were entitled to make.The second ground of appeal was that no reasonable Tribunal could have come to the conclusion that the financial constraints prevented the school from paying her certain expenses or permitting her to stay at a CCF Camp when the pupils were there. It may be that a differently constituted Tribunal might have come to a different conclusion to that which this Tribunal reached, but we see there was a hearing for a number of days and we have already referred to the paragraph in the decision, when the Tribunal say that every issue was looked at. We consider that, on the material which we have seen, even if other Tribunals might have reached a different decision, it was not perverse of this Tribunal to conclude as it did. In these circumstances, that point does not raise a point of law to go forward on appeal.The third matter on which the Appellant particularly complains, is an allegation that she did not get a fair hearing in the manner in which the Respondent treated her application for Deputy Head of the school. Again, we have looked at the way that this was dealt with by the Tribunal and we cannot conclude, as she asked us to do, that the decision made by the Tribunal was perverse in the circumstances. Again, a different Tribunal might have come to a different result, but there has been a long hearing before a Tribunal and we can see grounds on which the Tribunal could have reached the decision it did. In these circumstances we cannot think that a point of law arises.The fourth heading under which Mrs Robins addressed us was that she got a fair hearing neither in the interlocutory hearings, which preceded the effective hearing starting on 23 March, nor at the hearing itself. We would note that certain of the interlocutory hearings were heard by a Tribunal headed by a Chairman other than that which heard the main decision, and on one aspect of that we are not happy with what occurred. That is, that it was necessary for one reason or another for a new date to be fixed for the hearing.There was some confusion as to the date of the hearing. The Appellant believed that the date fixed for the hearing was 21 November 1994. In fact, the actual date fixed for the hearing was 14 November 1994. The Appellant has told us that no written notice of the hearing date was received by her. She said she knew nothing about the hearing date of 14 November until such times as she learned that, because she had not appeared on that date, her application had been struck out. It having been struck out, she ultimately made an application for it to be reinstated which was successful, but she was ordered to pay £500 as wasted costs order at the end of the hearing. Mr Sethi, Counsel on the ELAAS Scheme has been helpful in addressing us on this point on behalf of the Appellant and has drawn our attention to Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 and particularly to Rule 13 of those Regulations which provides, before a striking out order as provided in Regulation 13 (2), is made:
"... the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."
From the chronology which Mr Sethi has presented us, it seems incontrovertible that the application was struck out on 14 November and a wasted costs order was made without giving the Applicant any opportunity at all to address the Tribunal on the propriety of such an order. Alternatively, when the matter was raised at a review stage, given the history which led to the confusion, it seems at least possible to us that no such wasted costs order should have been made.In the circumstances it seems to us that an appeal should be allowed to go to a full hearing as to whether the costs award should stand. This point is referred to at page 4 of the present grounds of appeal in a somewhat otiose manner; we think it would be appropriate, if this is to go to a full hearing, that an amended Notice of Appeal on this point should be lodged with the Tribunal and served on the Respondent in a suitable form within 21 days of today. Mr Sethi has kindly told us he will assist the Appellant in making an appropriate amendment to the Notice of Appeal.Another part of the interlocutory history of the hearing about which the Appellant complains is that a delay was allowed because Counsel was ill; she submitted to us that such an adjournment was against the rules of the Tribunal. We looked at the rules with her during the hearing. They provide that normally there will not be adjournments for Counsel's convenience. Normally does not include every case. It could well have been considered that in a case of the complexity of that of the Appellant it was desirable that there should be the same Counsel appearing throughout. In our judgment the fact that an adjournment was allowed for Counsel in this case was not unfair.As to her suggestion that she did not get a fair hearing before the Tribunal, we have carefully considered the contents of the affidavits which she swore on 23 October 1998 and the Chairman's comments on it. We have also considered those documents in the context of the decision which we have read.We always carefully consider submissions made by an Appellant that they have not had a fair hearing because it is very important that hearings should be, not only conducted fairly, but seen to be so conducted in an Employment Tribunal. Both for the Tribunal and for an applicant in person difficulties often arise in the course of a hearing because of the unfamiliarity of such an applicant with court procedures. Looking at all the documents at which we have looked, we are satisfied that there was certainly no bias by the Chairman and the Members who conducted the hearing of the Appellant's applications and we conclude that her claims that she did not get a fair hearing are misplaced.Chairmen have a very difficult job to do when a litigant appears in person, where complex matters arise for decision. Often an applicant, however articulate, is not able to understand all the legal niceties and sometimes decisions are taken as to relevance with which they do not altogether agree. However, we are satisfied, looking as we have at the documents before us, that if this matter goes to a full hearing, there are no prospects of the Appellant establishing that the hearing was not properly and fairly conducted.In the circumstances, save for the point which we have identified as to the wasted costs order, we will not allow this appeal to proceed further. We will allow the appeal only to continue on the issue of the wasted costs order.