MRS S FLETCHER v RAILTRACK PLC [1999] UKEAT 618_99_2909

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 618_99_2909Case No Appeal No. EAT/618/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S FLETCHERAPPELLANTRAILTRACK PLCRESPONDENT
Before
Mr Justice MorisonDate 29 September 1999
[1]APPEARANCES For the Appellant MISS C MACLAREN (of Counsel) For the Respondents MISS J MCNEILL (of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine what should happen to the fifth issue, which was identified by the Employment Appeal Tribunal when it gave judgment at the PHD hearing. The court on that occasion had identified four points which are arguable. The fifth point is one which relates to what I would describe as "a procedural issue". The background to it is that the Employment Tribunal held a Directions Hearing in order to identify the issues between the parties, having regard to various matters which I do not need to go into.[2]The Tribunal sat with a Chairman alone on 26 February 1998 and defined the first issue as whether the Respondent, that is Railtrack, unlawfully dismissed the Applicant. The second issue related to her complaint of unlawful discrimination.[3]The Tribunal gave various interlocutory directions and fixed the hearing for five days starting on 8 June 1998.[4]It is the Applicant / Appellant's case that at that hearing Counsel on behalf of Railtrack told the Employment Tribunal that Railtrack would not be disputing the unfair dismissal claim. She contends, therefore, that the finding made by the Employment Tribunal following the four-day hearing in June 1998 was unfair to her on that issue, because she had approached the case on the basis that unfair dismissal would not be a topic for determination by the Employment Tribunal that by the time she realised that unfair dismissal was going to be dealt with it was, as she puts it, too late because she, herself, had already presented her own case.[5]At the PHD hearing I gave directions that affidavit evidence should be provided to me as to what had taken place at the interlocutory hearing before the Employment Tribunal. I have been provided with that material and included amongst it is a statement from a Solicitor for Railtrack recounting what he says he was told had happened, and exhibiting a back sheet from Counsel which showed that unfair dismissal was, at any rate on his back sheet, defined as an issue.[6]When the decision of the Tribunal was promulgated Mrs Fletcher, the Applicant / Appellant, applied for a review which was refused and the Tribunal said that the Applicant never indicated to the Tribunal prior to, or in the course of evidence, her apparent understanding that the unfair dismissal was not to be contested. That runs contrary to what she has sworn in her affidavit and what forms the first part of her Notice of Appeal which, in paragraph 3 starts off by saying:
"I introduced my case with specific reference to the Interlocutory Order dated 7th March 1998 as being the purpose of the full merits hearing. Mr Thomas did refer to the original paperwork referring to unfair dismissal and I informed him that Railtrack had confirmed at the Preliminary Hearing that they were not contesting this matter. Mr Thomas's only response was that he did not have any papers on his file relating to the issue."
[7]Miss McNeill has appeared on behalf of Railtrack to argue that this is not an arguable point, having regard to the weight of the evidence in this case. It is her recollection, although she is plainly embarrassed acting both as advocate and potential witness, but it is her recollection that the question of unfair dismissal was on the agenda from the outset of the substantive proceedings.[8]What should the Employment Appeal Tribunal now do in relation to this issue? It is obvious that it is an issue which is going to have to be determined on the facts, since I am not persuaded by Ms McNeill that the case advanced by Mrs Fletcher is so obviously hopeless as to be bound to fail. This is a point which is going to complicate otherwise straightforward and ordinary grounds of appeal, raising the four points to which I have already referred. It will hold up the hearing of the appeal and I am bound to say that I do not consider that it is likely that this point will advance Mrs Fletcher's cause. She will win or lose, as it seems to me, largely on the basis of the four points to which reference has been made. Nonetheless, she is entitled to argue this point as it is arguable.[9]I agree with Ms MacLaren that it would be sensible to split this case. Ms McNeill also says that the appeal should be split into two, that is to deal with the four issues and then a separate hearing to deal with the fifth. The parties are in opposition as to which bit should go first. I am of the view, having regard to the nature of the relief in particular which Mrs Fletcher is seeking, namely re-engagement rather than compensation, that it would be sensible to take the first four issues first since the fifth issue is likely to generate more heat than light.[10]I think that a day should be fixed for the hearing of those four points as soon as is possible. If, at the end of that hearing Mrs Fletcher were to fail, the question then would arise as to the fixing of the date for the fifth ground, and at that time it may be that questions of costs would arise in relation to the way that fifth issue is determined.[11]It may be that, as this is an issue of fact, the ordinary court principles should apply so that if Mrs Fletcher succeeded on that issue she should have her costs, but that if she failed she would have to pay Railtrack's costs but that is something to be determined by the Employment Appeal Tribunal when giving directions at the end of their hearing on the first four issues. I hope that a hearing date can be fixed in December.