Nwachukwu v London Borough Of Brent [1999] UKEAT 1205_98_1901

EAT

Nwachukwu v London Borough Of Brent

[1999] UKEAT 1205_98_1901 · 1999-01-19

HIS HONOUR JUDGE SMITH QC : This is an ex parte application for leave to appeal to a full hearing of an appeal against the decisions of an Industrial Tribunal held at London (North) on 19 January 1998 and 18 March 1998, of which extended reasons were sent to the parties on 23 January 1998 and 27 March 1998 respectively whereby the Industrial Tribunal unanimously held:(1) on 19 January 1998, that the Appellant's Originating Application should be struck out and dismissed for non-compliance with an order on the grounds of discovery and for non-attendance before the Industrial Tribunal on 19 January 1998, and

(2) on 18 March 1998, that the Appellant's application for a review of its decision on 19 January 1998 should be refused.

We have reminded ourselves that the ex-parte Applicant for leave to proceed to a full hearing need only show an arguable point of law to be allowed to proceed to a full hearing of her appeals. We have also noted that unfortunately she has not attended today, although strenuous efforts have been made throughout the morning to obtain her attendance, or an explanation for her failure to attend on the hearing of her appeal but have been unsuccessful. Neither have we had the benefit of hearing from her representative. We say her representative in the sense that that is the reference to the gentleman who had been representing her both before the Industrial Tribunal and also on an earlier appeal before the Employment Appeal Tribunal.

Despite her non-attendance and that of her representative, we have of course taken into consideration very carefully all the papers and the material which she has placed before us, including obviously the Notice of Appeal and various other documents.

As appears from her Originating Application and the Notice of Appearance in response to it, the Applicant had been employed from 13 December 1994 by the Respondents, the London Borough of Brent, eventually as a Field Social Worker until her dismissal by the Respondents on 24 April 1997. It was the Appellant's case that she was unfairly dismissed, in breach of the Respondent's disciplinary procedure, so that she claimed at the end of the day in her Originating Application, damages for breach of contract, compensation for unfair dismissal and damages for injury to feelings.

By the Notice of Appearance on the other hand, the Respondents pleaded that the Appellant had been dismissed for gross misconduct following a disciplinary hearing on 18 March and 24 April 1997, at the conclusion of which "she was found to have failed to follow child protection procedures thus putting children in the Respondent's care at risk". The Respondents pleaded, as in our experience would usually be the case, that their disciplinary procedure provided for summary dismissal in cases of gross misconduct such as this allegation.

At the hearing before the Industrial Tribunal on 19 January 1998, the Applicant did not attend. The Industrial Tribunal found in paragraph 2 of the extended reasons she had not complied with an order for discovery made eventually by the Chairman on 11 December 1997, arising out of the decision letter which the Industrial Tribunal had given on 17 November 1997, in turn arising out of an interlocutory hearing on 7 November 1997.

By its findings of fact in paragraph 3 of the decision, the Industrial Tribunal found that the Appellant had had notice of the hearing before them on 19 January, which was the substantive hearing of the Originating Application. The Industrial Tribunal referred in the course of their reasons to an appeal hearing before the Employment Appeal Tribunal on 6 January 1998, which was, we have learned, an appeal against the decision letter of the Industrial Tribunal on 17 November 1997 which set out the orders made on the original interlocutory hearing on 7 November 1997.

In the light of its findings, the Industrial Tribunal exercised its power under the Rules of Procedure to strike out and dismiss the Originating Application. At the review hearing which was, we consider, to be a very full hearing held on 18 March 1998, the Industrial Tribunal, carefully, in our judgment, reviewed its decision on a review application based on all four relevant grounds provided for in the Rules. The Industrial Tribunal heard evidence both from the Appellant and from her representative, Mr Okolo, a community advocacy consultant. The Industrial Tribunal made detailed findings of fact, which are self-explanatory and as are set out in paragraph 2 of its review decision. Included among such finding at sub-paragraphs E-G, there is amplification of the Industrial Tribunal's earlier findings relating to what took place at the appeal hearing before the Employment Appeal Tribunal on 16 January 1998, which was an interlocutory appeal heard before the President and members.

We have now had the benefit of seeing the relevant papers relating to that hearing and in particular, the judgment of the Employment Appeal Tribunal, which we find confirm the accuracy of the facts there found by the Industrial Tribunal. In particular, it is important for us to cite from the original judgment of the President (sitting with Dr Grieves and Mr Morris) at page 3 at E for most of the rest of the judgment:-

"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 Counsels contention that there was any restriction in the care order that was made in relation to the particular infant, in respect of whose case the Applicant was criticised? In particular, whether there was any restriction of contact between the mother and the child? If the Appellant requires answers to those questions before the hearing, we have no doubt 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 purpose and effect of this Tribunal's interlocutory ruling"

So it is important that we should make clear that we have very carefully in mind the approach that was there being taken by the Employment Appeal Tribunal. It is clear in our judgment that the Employment Appeal Tribunal was certainly not there granting any stay of the Industrial Tribunal proceedings. What the Employment Appeal Tribunal were doing was indicating to the Appellant the steps that she or her representative would need to take if they wished to pursue the matter of obtaining discovery or further information in regard to the details of the care order.

At paragraph 3 and 4 of the review decision, the Industrial Tribunal set out the respective submissions and at paragraph 5 expressed its conclusion. The Industrial Tribunal reiterated its conclusion that the Appellant and indeed her representative had had sufficient notice of the substantive hearing. It expressly found that the issue of specific discovery relating to the care order had not been raised at the interlocutory hearing on 7 November 1997, and had not been a proper subject of appeal to the Employment Appeal Tribunal and that the President had simply advised the Applicant to take the matter up with the Respondent or failing that, with the Tribunal. In fact the Tribunal went on to find that nothing was done in that regard and no application was made to the Industrial Tribunal in respect of specific discovery of the care order. The Industrial Tribunal found no error on the part of Industrial Tribunal staff, that the Appellant was fully aware of the hearing on 19 January 1998 and that the interest of justice did not require a review since the Applicant's representative was "only relying on a series of misunderstandings".

We have carefully considered the Applicant's Notice of Appeal and the submissions made to us in those documents. Firstly it is submitted that the Industrial Tribunal had misdirected itself in reaching a perverse decision by failing to follow what is described as a direction given by the President which had to be implemented before the case was listed for a hearing on the merits, but in our judgment no such direction was ever given by the President or by the Employment Appeal Tribunal and neither the President nor the Employment Appeal Tribunal ever granted a stay of these proceedings. The President and the members of the Employment Appeal Tribunal dealt with the matter in the way we have already outlined by reference to the judgment of the Employment Appeal Tribunal and in our judgment there is no possible ground for appeal along these lines.

Secondly, it is submitted that the Industrial Tribunal in some way misdirected itself with regard to the law relating to specific discovery of the care order i.e. the care order which was relevant to the dismissal. However, in our judgment, no issues of law relating to specific discovery were ever before the Industrial Tribunal. There had been no application to the Industrial Tribunal by the Appellant for specific discovery of the care order and no order made by the Industrial Tribunal in relation to it. Accordingly, we cannot find any foundation for this ground of appeal.

Thirdly, it is submitted that on the review the Chairman wrongly made use of information given to him at the original hearing after the appeal at the Employment Appeal Tribunal. That is the way the matter is put although it does not make complete sense to us with respect to the author of the Notice of Appeal. As we understand it, this relates to what must have been the Chairman's action in taking steps to ascertain that the President and the Employment Appeal Tribunal had not stayed the proceedings pending discovery of the care order as the Applicant's representative asserted that the Employment Tribunal had at the review hearing. In our judgment, the Chairman acted properly in confirming with the EAT that no such stay had been imposed by the President and the members and indeed we find it that it was incumbent upon him to make such a check.

Finally, it was suggested that the Chairman should not have required the Appellant's representative to give evidence and was hostile to him in cross-examination so that the atmosphere of the hearing became tainted. We have no doubt that the Chairman and indeed the entire Industrial Tribunal were critical of the manner in which the Appellant's representative had conducted the case for her as appears expressly from the last sentence of the review decision and implicitly from the Industrial Tribunal's rejection of Mr Okolo's account of what had taken place before the President.

However, in our judgment, the Chairman and the Industrial Tribunal were entitled so to express themselves and were also entitled to test the veracity of the Applicant's representative's account by which he sought to explain the absence of the Appellant at the hearing, her failure to comply with the order of discovery made against her, and the representative's refusal to accept service of the trial bundle of documents which the Respondent attempted to serve on him on 16 January 1998. It may well be that such shortcomings on the part of the Appellant's representative contributed to the Industrial Tribunal's decision to strike out and dismiss her application. That is not a matter which can now be relied upon by her as a ground of appeal.

We have reminded ourselves that we have very limited powers to interfere with the decision of an Industrial Tribunal to strike out an application for failure to comply with an order and to strike out and dismiss an application for non-attendance by the Applicant at the substantive hearing. It is only if we thought that the decision was perverse or had been one which no reasonable Tribunal could have reached due to some clear misdirection of law that we could possibly interfere. For all the reasons we have stated in this judgment we have concluded that there is no arguable ground of appeal against the decision made both at the original hearing and on the review and accordingly, for those reasons, the application for leave ex-parte to proceed to a full hearing of the appeal will have to stand dismissed.