MRS C JOHNSON v LUTON & DUNSTABLE HOSPITAL NHS TRUST [1999] UKEAT 1378_98_2506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1378_98_2506Case No Appeal No. EAT/1378/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C JOHNSONAPPELLANTLUTON & DUNSTABLE HOSPITAL NHS TRUSTRESPONDENT
Before
His Honour Judge John Altman Mrs T A Marsland Mr T C ThomasDate 25 June 1999
[1]APPEARANCES For the Appellant MR JOHNSON (Husband) on behalf of Appellant JUDGE JOHN ALTMAN: This is an appeal from the refusal of the Employment Tribunal promulgated on 5 August 1998 to refuse the application of the Appellant for a review of the Employment Tribunal's decision promulgated on 1 May 1996. It comes before us by way of preliminary hearing to determine whether there is a point of law arguable in full before the Employment Appeal Tribunal. For a number of years now, the Appellant has been engaged before Employment Tribunals and the Employment Appeal Tribunal in a multiplicity of applications which arise out of her termination of employment on 4 December 1994 with the Respondents. In order to give a history of the matter, that leads to this particular appeal, it is only necessary to refer to the thread of the relevant proceedings. The other history of this case has been, if we may say so, very fully set out in the judgments of Mr Justice Morison and Mr Justice Kirkwood in the Employment Appeal Tribunal on earlier appeals and those decisions provide helpful background material to the various procedures that have taken place.[2]The Appellant began work with the Respondents in June 1983, so that she had been with them more than 11 years when her employment was terminated on 4 December 1994. On 1 March 1995 she presented her Originating Application to the Employment Tribunal (the Industrial Tribunal as it was then called). On 26 March the Respondents filed their Originating Application. On six days in January and April 1996, the Employment Tribunal heard the application under a number of heads by the Appellant. In the event they dismissed applications relating to race, sex and age discrimination and sexual harassment. They found the complaint of unfair dismissal proved and they adjourned the remedy hearing.[3]On 30 September and 7 October 1996 over two days, the question of remedies was considered by the Employment Tribunal. The substance of the case before the Employment Tribunal related to a purported dismissal for redundancy of the Appellant. In relation to the race discrimination case, there was no overt evidence of discrimination found by the Employment Tribunal. In its decision the Employment Tribunal directed it's attention to whether or not it would be right to draw an inference of discrimination on the ground of race from the facts which they found.[4]The Appellant argues that at the very time in December 1996 that she was dismissed, either her job or other similar jobs were available to which she could have been directed. Mr Johnson who has argued the case on behalf of his wife has said that there was a planned intention on the part of the Respondents to mislead the Tribunal, that it was not a genuine redundancy and that the Respondent's witnesses deliberately misled the Tribunal. He would say that because the Respondents did not disclose the availability of job vacancies around the time of dismissal before the Tribunal reached its decision on liability, the Employment Tribunal's assessment of whether to infer race discrimination was prejudiced. He would go further and say that had the Tribunal known of the availability of such posts, that too would have informed their assessment of whether or not an inference was to be drawn.[5]When the matter came to a remedies hearing, the Chairman in the decision asserted that the Applicant, as she then was, agreed that there was too much acrimony for re-engagement and the Respondents made no submissions. Mr Johnson has pointed out that the Originating Application sought reinstatement and he has told us that the way the decision is recorded was really a reflection of the fact that the Chairman suggested to the Applicant that there was too much acrimony and she assented to that view. However he says that at the time she would have liked a job with the Respondents if one were available. Be that as it may, there is no doubt that jobs were being advertised around that time.[6]The matter came before the Employment Appeal Tribunal in relation to other matters in appeal number PA/346/98, 347/98 and 348/98. When Mr Justice Morison in Chambers heard appeals from the refusal of the Registrar to permit appeals to continue because they were out of time, those particular appeals were dismissed but on page 3 of the judgment at letter E, Mr Justice Morison said this:
"As the history of the litigation demonstrates, he [Mr Johnson] is not unaware of how to appeal and it is significant, in my judgment, that there was no appeal against the tribunal's decision on liability. Mr Johnson says that the original Industrial Tribunal were deceived by the employers by false evidence, and if that was so he would be entitled to make an application to the Industrial Tribunal for a review."
That judgment being given on 1 July 1998, Mrs Johnson made an application for review on 20 July 1998 to the Employment Tribunal and that application set out the ground as being new evidence in the following terms:
"It was not until after 24 June 1998 that the Applicant became aware of, a vacancy sister/ward manager/senior nurse to which Ms Lucy Bucciero, a student of the Applicant [Mrs Johnson] was appointed during the relevant period of consultation, wherein there was a legal duty on the Respondents …. to offer the said Mrs Johnson "reasonable alternative employment", of which Mr Cameron Ward, the General Manager said under oath. He was not aware of the legal duty."
[7]This application was then considered by the Chairman in his decision to which I have referred. In paragraph one of the reasons he points out that the review is sought on the grounds of new evidence becoming available and he describes it in a paraphrase of the passage to which I have referred to in the application for a review in the following terms:
"On an unspecified date after 24 June 1998 the Applicant became aware of a vacancy at Luton and Dunstable NHS Trust and that had the Applicant known about this vacancy at the time of her dismissal in 1994, she would have submitted this information in her Originating Application which was presented on 6 March 1995."
[8]In order for us to try to understand the full extent of the evidence that was being spoken of, we pursued this with Mr Johnson. He produced an advertisement from Nursing Times of 24 June 1998, where there was an advertisement for a senior staff nurse. But importantly, it showed that anyone interested in applying for that job should enquire from Sister Lucy Buccerio. Mr Johnson says in effect that set alarm bells ringing and he and his wife made enquiries and they have discovered that the post that Sister Lucy Bucciero obtained was available at or about the time, he believes, of the dismissal of the Appellant. He said he thought it was about March 1996 but later on he thought he was mistaken about that and it may have been in 1995. He said he wrote to the Respondents to ask them to confirm about that appointment but they never replied. He is not sure of the date. He has also produced a document which I think he may have received in the course of these proceedings earlier, of job vacancies between March 1995 and October 1995. He has also said that there is other evidence but he anticipates that witnesses would be reluctant to jeopardise their position in coming to the Employment Tribunal.[9]At the moment we are far from satisfied that there is available evidence which could be produced to support the obviously genuine feeling that the Appellant has of a misleading picture having been presented to the Tribunal hearing. It seems to us that there are vacancies of some kind fairly near to the date of dismissal. Whether they are relevant, whether they were available at the time, whether the original Tribunal knew of them or not, we have no idea whatsoever. Nor have we any knowledge as to whether in the end Mr Johnson or the Appellant would be able to produce evidence to a Tribunal in any event which can be described as new evidence to support the present contentions.[10]However, it is to be noted that in the review decision the reason for refusing the review was that there must be finality to litigation and in paragraph 4 the Chairman says an application for review must be made within the time limits specified in Rule11(4) of the procedure regulations. He pointed out that the application was more than two years outside that time limit and he concludes that it "must" therefore be refused on the grounds that it has no reasonable prospects of success. We are not sure from that whether it was being refused because it was outside the time limit or because it had no reasonable prospect of success and that does not appear clear.[11]We are also mindful of Rule 15 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulation 1993 Schedule 1 where in Rule 15 it provides:
"A Chairman may on the application of a party or of his own motion, extend the time for any act appointed by or under these rules"
. It would only be where there was clear evidence not only that there was new evidence that should have been before the Tribunal, but also that this evidence casts light on the integrity of the proceedings before the Tribunal (in the sense of its reliability not in the sense of casting aspersions on anyone conducting it), that we would have thought that that clause would fall to be considered.[12]However, it seems to us that there is an arguable point of law which is this: in considering the application for a review, did the Chairman confine himself to applying the time limit to the application or did he consider the merits of the application and in the light of that consider whether time should be extended and to what extent. If he did one when he should have done the other, did he err in law?[13]Accordingly, we direct that this matter should proceed to a full hearing before the Employment Appeal Tribunal to be listed in Category C for up to half a day, Skeleton Arguments to be submitted by the parties not less than 14 days before the hearing, and in addition, we give the following direction: the Appellant must file in advance of the hearing the witness statements of those witnesses and the documents to be relied on which the Appellant says amounts to the new evidence upon which she relies in supporting the argument that there was new evidence which has become available since the hearing of vacancies at the time of dismissal or about the time of dismissal in December 1994. That should be prepared as a bundle of new evidence. It would not be appropriate simply to have a description of the new evidence, or statements from Mr or Mrs Johnson as to what the new evidence amounts to, because without a sight of that new evidence, we anticipate no Tribunal would be able to assess whether it falls within the ambit of qualifying to be considered when a review is being considered.[14]We have given our decision at some length in order hopefully to assist everyone involved in this case to focus on what, at this stage, is involved. At the conclusion of the hearing, Mr Johnson diffidently asked if he could write to the Respondents to ask for further information. It is not really for us to give or refuse permission. The parties can write to each other freely and if it be the case that the post to which Sister Buccerio was appointed was not available at the time that the Appellant was dismissed, then obviously production by the Respondents to prove that will assist their case, but we make no order compelling them to do so.