MISS Y HIBBERT v NATIONAL ASSOCIATION OF CITIZENS ADVICE BUREAUX [1999] UKEAT 1195_98_1406

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1195_98_1406Case No Appeal No. EAT/1195/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS Y HIBBERTAPPELLANTNATIONAL ASSOCIATION OF CITIZENS ADVICE BUREAUXRESPONDENT
Before
His Honour Judge Peter Clark Mr L D Cowan Ms B SwitzerDate 14 June 1999
[1]APPEARANCES For the Appellant MS J EADY (OF COUNSEL) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS) JUDGE PETER CLARK: The Appellant was employed by the Respondent as an Advice Worker from 16 th July 1987 until her dismissal effective on 15 th October 1997. Some confusion was caused by two Originating Applications raising similar complaints, being lodged at different regional offices. The first complaint, Case No 2300170/98, was presented by the Appellant to the London (South) Employment Tribunal on 14 th January 1998 ("the Croydon" case). The second, Case No 3200161/98, appears to have been presented to the Stratford Employment Tribunal on about 28 th January 1998 by the Appellant's then Trade Union representative, Diana Holland of the Transport & General Workers Union ("the Stratford" case).[2]At a Directions Hearing held at Croydon before a Chairman, Mr John Warren, on 9 th June 1998, at which neither party attended, that Chairman ordered by a letter dated 18 th June 1998, among other things that the Stratford complaint be dismissed.[3]The principal complaints made by the Appellant were those of unfair and wrongful dismissal. She also complained that the Respondent ought to have granted her leave with pay. All complaints were dismissed by an Employment Tribunal sitting at Croydon (Chairman: Mr D Booth) by a decision with extended reasons dated 24 th August 1998.[4]By a Notice of Appeal dated 10 th September 1998 and received by this Tribunal on 15 th September the Appellant sought to appeal against both the Warren directions Order of 18 th June and the substantive Booth Tribunal decision of 24 th August. The Appeal against the Warren Orders is therefore out of time and no application is made by Ms Eady for an extension of time. Indeed, her submissions today have focused solely on the substantive decision by the Booth Tribunal.[5]Turning to the Booth decision, the Tribunal made the following findings of fact. In 1995, the Appellant transferred to the Peckham branch of the Respondent under a manager, Ms Kilty. Ms Kilty criticised the Appellant's work and attendance, leading to a complaint by the Appellant to the management about Ms Kilty. Investigation of that complaint was delayed by a long period of absence from work when the Appellant was off work with a leg injury. Matters came to a head on 10 th June 1997 when the Appellant reported to work and there was some altercation at that time, resulting in her being sent home.[6]A meeting was then arranged for 19 th June which she did not attend but she told the Tribunal that she was sick. An investigation was then carried out by Mrs Mohammed, the Service Manager for the South London area and she concluded that there was nothing in the Appellant's complaints about the events of 10 th June.[7]On 4 th July a meeting was held to discuss the Appellant's earlier complaints. Mrs Mohammed told the Tribunal that the Appellant would not answer questions and she eventually left that meeting complaining of feeling unwell. Mrs Mohammed decided that the complaints were frivolous and as such, a breach of the Respondent's disciplinary code. Disciplinary proceedings were then commenced by a letter to the Appellant requiring her to attend a meeting on 25 th July to face charges of failure to co-operate in the long-term sickness procedure - she had not given consent to the disclosure of her medical reports, and secondly, of making frivolous and vexatious allegations. That meeting did not take place on 25 th July but was adjourned to different dates and finally the Appellant was instructed to attend a disciplinary hearing on 17 th September by a letter delivered by hand. She did not attend. The hearing continued in her absence and as a result, she was issued with a written warning.[8]She had been off work since the end of July 1997 and had put in a written request for special paid leave. This had been refused by Ms Kilty and the Tribunal concluded that under the Respondent's Rules such special paid leave lay entirely in the discretion of management and was not an entitlement of the Appellant.[9]There were then various communications by telephone. The Appellant was instructed to return to work on 25 th September. She did not do so, giving no reason for her non-attendance. A further disciplinary hearing was scheduled for 14 th October. Again, the Appellant did not attend and she was dismissed for gross misconduct. The Appellant took a point about not receiving communications from the Respondent but that excuse was rejected by the Tribunal, which concluded that the Respondent had taken all reasonable steps to bring letters to the attention of the Appellant, including delivery by hand.[10]Against that factual background the Tribunal concluded that the dismissal was fair; that the Respondents were entitled to summarily dismiss the Appellant and dismissed her claim for special leave pay, it being a matter for the discretion of management. The Appeal[11]The nature of the Appeal advanced by Ms Eady, appearing on behalf of the Appellant under the ELAAS pro bono scheme, is not to challenge the Booth Tribunal's findings and conclusion as such, but to contend that the Appellant did not receive a fair hearing. Alternatively that the Tribunal wrongly exercised its discretion in refusing to adjourn the substantive hearing held on 17 th August in the following circumstances.[12]Both complaints had been received by the Croydon & Stratford Employment Tribunals respectively and thereafter, a letter was sent to the Appellant on 30 th January 1998 suggesting that the two complaints be combined and heard at Croydon. The Appellant said, in a telephone call to the Croydon Tribunal on 3 rd February 1998, that she was unaware of the Stratford complaint. It seems that on 16 th February 1998, the Respondent entered forms IT.3 to both complaints. On 23 rd February, the Appellant wrote to Croydon asking for copies of the Stratford complaint. After further correspondence, on 7 th April 1998, the Croydon Tribunal wrote a letter to the Appellant which contained the following paragraph:
"Enclosed is a copy of the IT.1 submitted by the Union. The Respondents entered a Notice of Appearance on 16 th February 1998 in respect of 2300170/98. A Chairman will consider at the Hearing for Directions whether to extend time to validate the Notice of Appearance. "
[13]We are told that no documents were enclosed with that letter. The Appellant chased it up and received copies of the Stratford IT.1 submitted by her then Trade Union representative and the Respondent's form IT.3 to the Stratford complaint. She did not receive a copy of the Croydon Notice of Appearance, which it turns out, was in the same terms as that lodged in the Stratford case.[14]In the light of a Direction given by Mr Warren in his letter of 18 th January at para 8, that the Respondent had leave to file Notice of Appearance in the Croydon case on or before 21 st July 1998 and no subsequent form IT.3 being served in that case it is the Appellant's contention before us that she genuinely and reasonably did not believe that a form IT.3 had been served in the Croydon case and that since the Stratford case had been dismissed, the Stratford form IT.3 (a copy of which had been sent to her) had also been dismissed. Further, although she received a list of documents from the Respondent the day before the Booth hearing on 17 th August, she did not see the Respondent's bundle until the morning of the hearing. She asked for an adjournment but it was not granted. She was thereby disadvantaged in the presentation of her case. We reject those submissions.[15]First, as to the form IT.3 in the Croydon case, we do not accept that it was reasonable for the Appellant to assume when she later received a form IT.3 in the Stratford case, bearing the date 16 th February 1998, that the reference to a Notice of Appearance in the Croydon case, in the letter of 7 th April 1998 from the Croydon Tribunal, was a typographical error for the Stratford case, without writing to Croydon enquiring where was the Croydon form IT.3.[16]Secondly, it is not uncommon for a party to deal with the opposing party's documents on the morning of the hearing. In the particular circumstances of this case, we are not satisfied that any injustice was caused by allowing the case to proceed on 17 th August, particularly in circumstances where according to a note from one of the members of the Tribunal, the Appellant arrived 45 minutes late for that hearing. Further, for the reasons given by the Booth Tribunal we are satisfied that that Tribunal was perfectly entitled on the facts as found to dismiss the Appellant's claims. In these circumstances, the Appeal must be dismissed.