MS L M THOMPSON v TOWER HAMLETS HEALTHCARE NHS TRUST [2000] UKEAT 1401_99_1407

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1401_99_1407

Case No Appeal No. EAT/1401/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS L M THOMPSONAPPELLANT

TOWER HAMLETS HEALTHCARE NHS TRUSTRESPONDENT

Before

Mr Justice Lindsay

Date 14 July 2000

[1]APPEARANCES For the Appellant MR ANDREW WILLIAMS (Representative) MR JUSTICE LINDSAY (PRESIDENT) : We have before us the adjourned preliminary hearing of the appeal of Ms L.M. Thompson in the matter Thompson against Tower Hamlets Healthcare NHS Trust. There was a hearing at the Employment Tribunal at Stratford under the chairmanship of Mr T. Ryan spread over three days and one with day spent in Chambers in September 1999. Mr Andrew Williams, a Consultant, appeared for Ms Thompson.

[2]On 24 September 1999 the decision was sent to the parties. It was some 12 pages long. It was unanimous and it said:

"(i) the Applicant was fairly dismissed; (ii) the Respondent did not discriminate against the Applicant on the ground of her race."

[3]On 9 October 1999 a Notice of Appeal was received. It had been signed by Mr Williams. It is largely directed to issues of fact. Indeed, although this is not our immediate concern today, it may on examination prove to be wholly concerned with matters of fact. It may thus prove to be unsuccessful. But what is clear is that it makes no allegation against the Chairman or the members of the Employment Tribunal in respect of their manner at and their conduct of the hearing at the Employment Tribunal.

[4]The Notice of Appeal was listed to come on as a preliminary hearing on 17 May 2000. Mr Dugdale then appeared for Ms Thompson under the Employment Law Appeal Advice Scheme (ELAAS) and asked for an adjournment on the ground that the intended representative, Mr Williams, had only recently fallen ill. The case was adjourned. The matter was ultimately re-fixed for today, 14 July 2000. Ms Thompson acknowledged her receipt of notification to that effect as early as 25 May 2000. She indicated she would be attending with Mr Williams as her representative and, indeed, Mr Williams has attended today.

[5]On 4 July 2000 Ms Thompson was reminded that a skeleton argument should be lodged not less than seven days before today. No skeleton was received. On 11 July there were received some papers from the Appellant and from Mr Williams, her representative. There was, it seems, no covering letter. There was no explanation of why these papers were so late if they were intended to be a skeleton argument. More importantly for our immediate purposes today, they both, for the first time, raise allegations of bias or improper conduct against the Chairman of the Tribunal.

[6]The Employment Appeal Tribunal has had a Practice Direction extant on such a subject since 29 March 1996. At page 1810 of the current edition of the Butterworths Handbook, at paragraph 9, one finds this:

"1. A party who intends to complain about the conduct of the Industrial Tribunal (for example, bias or improper conduct by the Chairman or lay members or procedural irregularities at the hearing) must include in the Notice of Appeal full and sufficient particulars of the complaint. 2. In any such case the Registrar may inquire of the party making the complaint whether it is intended to proceed with it. If so, the Registrar will give appropriate directions for the hearing."

Here, as we mentioned, the Notice of Appeal contains nothing on such a point but the later papers do. Sub-rules 3 and 4 say:

"3. Such directions will normally include the swearing and filing of affidavits by the complainant or his or her advisers or other witnesses or by the Respondent or his or her advisers or any others who can give relevant evidence as to the facts which form the basis of the complaint and the provision of further particulars of the matters relied on. 4 When the direction has been complied with the Registrar will notify the Chairman of the Industrial Tribunal and provide copies of the Notice of Appeal, the affidavits and other relevant documents to the Chairman so that he has, and, if appropriate, the lay members of the Industrial Tribunal have, an opportunity to comment on them. Those comments will be supplied by the EAT to the parties."

And, finally at sub-rule 6:

"6. The EAT will not permit complaints of the kind mentioned above to be raised or developed at the hearing of the appeal unless this procedure has been followed."

Mr Williams' letter heading describes him as follows:

"BA (Law), Diploma Industrial Relations/Employment Law, Common Law Immigration and Employment Law Consultant, Tribunal Practitioner."

[7]There can be no excuse, given that he has been in the case from the Employment Tribunal hearing onward, for failing to comply with that Practice Direction. Moreover, as an experienced representative, he should have made it clear to Ms Thompson that an appeal to the EAT concerns only errors of law and that it is not a platform for a long history of fact to be re-told. The 17 pages of Ms Thompson's papers marked 14 July 2000 in the top right-hand corner are not fresh evidence because they are unsworn. In any event, even if they were sworn, there would be, of course, difficulties in introducing evidence at this stage, nor are they submissions of law and they are quite inappropriate and should have been seen to be so.

[8]We have raised with Mr Williams that in the circumstances this case has to be adjourned and we have heard no argument to the contrary. Indeed, Mr Williams sees that has to be the case. We adjourn it generally but there are seven points that we need to make.

[9]First of all, Ms Thompson and Mr Williams must first consider whether the Applicant truly wishes to persist with a complaint as to the Chairman's manner and conduct. Of course, such complaint can be raised but it is a serious complaint and thought needs to be given as to whether it is to be persisted with.

[10]Secondly, if that complaint is persisted in, then one or more affidavits must be lodged with the EAT not later than 14 days from today. They must give as much detail of the complaint as is possible and certainly as much detail as is intended to be relied upon.

[11]Thirdly, if and when they are received by the EAT, they will then be sent on to the Chairman for his comments.

[12]Fourthly, when those Chairman's comments are received, I am to be shown them in order to determine whether yet further evidence or comment will be necessary from either the Appellant or the Respondents.

[13]Fifthly, if any amendment is to be sought to be made to the Notice of Appeal, it must be formulated verbatim by Ms Thompson or by Mr Williams or otherwise on Ms Thompson's behalf and sent to the EAT within 21 days from today. When the matter returns for the yet further adjourned preliminary hearing the EAT will not consider matters which are not adequately raised in the amended Notice of Appeal, whether or not matters purport to have been raised in subsequent or other communications.

[14]Sixthly, a skeleton argument by or on behalf of Ms Thompson, must be lodged not less than 14 days before the further adjourned hearing and seventhly (and this is particularly for Mr Williams' attention) not later than 10 days from today Mr Williams must swear and send to the Employment Appeal Tribunal an affidavit giving what explanation he chooses to give for the failure to supply a skeleton argument at least seven days before today's hearing.