MS HANNAH SAM v GUY'S & ST THOMAS'S HOSPITAL TRUST [2000] UKEAT 156_00_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 156_00_2510Case No Appeal No. EAT/156/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS HANNAH SAMAPPELLANTGUY'S & ST THOMAS'S HOSPITAL TRUSTRESPONDENT
Before
Mr Justice Charles Mr B V FitzgeraldDate 25 October 2000
[1]APPEARANCES For the Appellant MR G D CONLIN (of Counsel) Instructed By: Messrs Collisons & Co Solicitors Nationwide Building 1 & 3 Hildreth Street Balham London SW12 9RQ MR JUSTICE CHARLES : This case comes before us today by way of preliminary hearing. Our task is therefore to consider whether the appeal raises any arguable points of law.[2]The parties are Mrs Hannah Sam, who is the Appellant and the Applicant before the Employment Tribunal and Guy's and St Thomas's Hospital Trust, the Respondents before us and below. I propose to set out briefly some of the background. It is as follows:(1) In July 1997 the Appellant presented an Originating Application claiming unfair dismissal.(2) The Notice of Appearance to that application is dated 31 July 1997 and in it the Respondents set out a particularised defence.(3) On 21 September 1998 the matter came before an Employment Tribunal sitting at London (South). The Appellant did not appear and the claim was dismissed. Paragraph 6 of the Extended Reasons for that decision sent to the parties on 28 September 1998 was in the following terms: "6. We bore in mind the history of adjournments in this case, as set out above. We had no information from the Applicant as to how long she would remain indisposed and her message was, in the circumstances, unsupported by any medical evidence or medical certificate. We also had in mind that a party who was absent could later seek a review of the decision arrived at in her absence, if she had good reason to do so. We concluded in all the circumstances that it would be in the interests of justice, having considered the Applicant's Originating Application, to dismiss her claim. Given the Applicant's absence, and our decision to dismiss her claim, we made no decision in respect of her request for disclosure."(4) On 21 December 1998 an Employment Tribunal at London (South) heard and allowed the Appellant's application for a review. The Extended Reasons for that decision were sent to the parties on 8 January 1999. Accordingly, on that review the Employment Tribunal revoked the earlier order dismissing the Appellant's claim and set hearing dates for 7, 8 and 9 April 1999. On that occasion the Employment Tribunal also gave some directions and considered an application by the Appellant to amend her Originating Application by adding a claim under the Race Relations Act 1976 . It refused that application. That refusal was dealt with in paragraphs 5 to 8 of the Extended Reasons. Paragraph 4 of those Extended Reasons shows that although the Appellant was then seeking a review, she applied for an adjournment of the hearing relating to directions. Unsurprisingly to our mind that application for an adjournment was refused.(5) The Appellant appealed against the refusal to allow her to amend to make a claim under the Race Relations Act. That appeal was dismissed by the Employment Appeal Tribunal. From the original Notice of Appeal it appears that there may be a pending appeal against that decision, or a pending application for permission to appeal against that decision, in the Court of Appeal. That now becomes irrelevant because any ground relating to that point has now been abandoned in respect of this appeal by Counsel for the Appellant. I would add that, in our judgment, Counsel who appeared for Mrs Sam today was clearly correct to abandon that ground and indeed, all the other grounds set out in the Notice of Appeal.(6) The hearing before the Employment Tribunal was due to start on 7 June but that date was vacated and the hearing was set to begin before the Employment Tribunal on 15 June. On that occasion the Appellant again applied for an adjournment but was not present. That application for an adjournment was refused and following its refusal the Tribunal went on to consider the Appellant's claim and dismissed it. Paragraphs 1 to 8 of the Extended Reasons in respect of that decision set out the history, some of which I have already referred to. They are in the following terms: "1. This case has had a protracted history. The Applicant was employed by the Respondents as a Midwife. As long ago as April 1997, she was dismissed following a disciplinary hearing arising out of an allegation that she had given false evidence in connection with disciplinary proceedings against another Midwife and that she had made false allegations against other members of staff in the course of those proceedings. On 15 July 1997, the Applicant presented an Originating Application complaining that her dismissal was unfair. 2. The case was adjourned for a variety of reasons on no less than four occasions, before coming to a hearing on 21 September 1998. The Applicant had by that time instructed four representatives to act for [her] in these proceedings, but neither the latest of those representatives nor the Applicant attended the hearing. Accordingly, the Originating Application was dismissed in the Applicant's absence. 3. The Applicant applied for a review of that decision on the ground that it had been reached in her absence, and that application was heard on 21 December 1998. The Applicant was able to satisfy the Tribunal that she had been ill at the date of the previous hearing and, in those circumstances, the Tribunal reviewed its earlier decision and set it aside. The Tribunal also fixed new hearing dates for the application of 7, 8 and 9 April 1999. 4. During the course of that hearing, the Applicant also applied to the Tribunal for orders for discovery and to amend her Originating Application to add a claim of race discrimination. The Tribunal refused to grant either of those orders and the Applicant appealed against both those refusals to the Employment Appeal Tribunal. As a result of an application to the Employment Appeal Tribunal by the Respondents, the Employment Appeal Tribunal ordered an expedited hearing of the Applicant's appeal, which took place on the 29 March 1999. Neither the Applicant nor her representatives were present at that hearing and the judgment of the Employment Appeal Tribunal records that shortly before the hearing of the appeal, the Applicant submitted a letter stating that she was too ill to attend the hearing. Notwithstanding her absence, the Employment Appeal Tribunal proceeded to hear the appeal and dismissed the Applicant's appeal. A subsequent application by the Applicant to set aside the decision of the Employment Appeal Tribunal and for leave to appeal against their decision was dismissed. 5. As a result of the action taken by the Employment Appeal Tribunal, there was no impediment to the hearing before the Employment Tribunal proceeding on the 7, 8 and 9 April, as had been directed on the 21 December. However, on 6 Apri1 1999, that is the date before the hearing was due to begin, the Applicant applied for a postponement of the hearing on the ground that she was too ill to attend. Enclosed with that application was a medical certificate certifying that the Applicant was suffering from flu and stress. On the basis of that material, a Chairman postponed the hearing and re-listed the case to take place on the 15, 16 and 17 June 1999. 6. By letter dated 28 May, but received by the Tribunal on the 2 June, the Applicant again applied for a postponement of the hearing. In that letter the Applicant stated that her mother had died in Ghana and that, as a result, she would be required to be abroad for a period of more than one month. The Chairman before whom that application came directed that the Applicant should supply copies of the airline tickers evidencing her intention to travel abroad, but copies of those tickets were not faxed to the Tribunal until late on the day of the 14 June. The Applicant's solicitor, who is employed by yet another firm of solicitors, informed the Tribunal that he had not received copies of the tickets to fax to the Tribunal until 12 June 1999 and had been unable to do so until 15 June because he himself had been ill. The long airline tickets showed the Applicant's outward flight to Ghana as being on 13 June and the return flight as being on the 2 July. 7. At this hearing, the Applicant's solicitor renewed her application for a postponement. He stated that the Applicant's absence abroad was unavoidable given that her mother had died and that, moreover, the Applicant might be expected to be in too distressed a condition as a result of the death of her mother and the stressful circumstances giving rise to this case to attend the Tribunal. The application was opposed by the Respondents who invited the Tribunal to view the Applicant's application somewhat sceptically in view of the previous history of the case. 8. The Tribunal would, in normal circumstances, be extremely sympathetic to an application for an adjournment on the ground of death of the near relative, even in circumstances, such as these, where a case has been postponed on a number of occasions and where the events giving rise to the case have taken place some considerable time ago. However, the material before this Tribunal has failed to satisfy us that the Applicant needs to be abroad at this time. More than two weeks have elapsed between the date when the Applicant notified the Tribunal of her mother's death and the date of her outward flight to Ghana. The Applicant has failed to explain why, having delayed travelling to Ghana for that length of time, it is necessary to be abroad at the time of this hearing. We are therefore not satisfied that the death of the Applicant's mother does require her to be absent abroad at this time, and we therefore refuse the postponement application. The Employment Tribunal then went on in paragraphs 9 and 10 of those Extended Reasons to consider the Applicant's claim. These paragraphs contain the decision to dismiss the Appellant's claim for unfair dismissal which is referred to in the Notice of Appeal that is before us. The Extended Reasons in respect of that decision were sent to the parties on 21 June 1999.(7) The Appellant sought a review of that decision. That review was heard on 1 September 1999 and the Extended Reasons in respect of the refusal by the Employment Tribunal to review were sent to the parties on 16 September 1999. This is the refusal to review that is referred to in the Notice of Appeal that is before us. On that application the Applicant was represented by a lay representative, a Mr A Williams. As is apparent from the Extended Reasons for that decision the Employment Tribunal went over the whole issue of whether there should have been an adjournment of the hearing in mid-June and they did so on the basis that if having regard to the additional information that was then placed before them they had thought that there should have been an adjournment they would revoke the earlier decision and give directions for a full hearing. On that occasion the Appellant gave evidence and, as I have said, had the benefit of being represented by Mr Williams. In effect the approach was a repeat of the review exercise carried out in December 1998.[3]The reasons why an adjournment was sought on this occasion were different to the reasons for adjournments on other occasions. Counsel informed us today that these proceedings have been adjourned seven times, three times at the instance of the Respondents and four times at the instance of the Appellant. Counsel told us that on each of the four adjournments granted at the request of the Appellant they had been supported by appropriate medical certificates. This time the reason for the adjournment related to the fact that the Appellant's mother had died which the Employment Tribunal naturally accepted was distressing and upsetting for the Appellant. Paragraphs 1 to 4 of the Extended Reasons sent on 16 September 1999 set out and record that the Appellant disputed some of the history set out in the Extended Reasons sent on 21 June 1999. The last sentence of paragraph 4 to paragraph 13 of those Extended Reasons are in the following terms:
"4. … Consequently, the Tribunal now has before it much fuller information about that matter. 5. In the course of her evidence, the Applicant produced an official death certificate showing that her mother died on 27 May 1999. As the Tribunal recorded in its previous decision, the Applicant applied for a postponement of the hearing on the following day. In her evidence, the Applicant said that she could not travel to Ghana immediately since she needed to raise money to buy an air ticket and also to make arrangements for the care of her children who live at home and who are aged 19, 16, l5 and 12. 6. The Applicant also produced the original of her airline ticket. That ticket was issued on 10 June 1999, although the date of issue appears to have been altered. The ticket shows that the Applicant booked an outward journey to Ghana on 13 June and a return flight on 2 July, although the Applicant told us that she subsequently changed the reservation for the return flight and actually came back to this country on 5 July 1999. 7. The Applicant also gave evidence about funeral customs in her country and in her culture in support of her contention that she needed to be abroad at the time of the last hearing. Summarising her evidence, she said that it was necessary for all members of her fam1ly to be present at the funeral, and indeed she said that the funeral did not actually take place until 25 June, following the return to Ghana of one of the Applicant's sisters on the previous day. The Applicant also said that, as her mother's eldest daughter and a qualified nurse, it was appropriate for her to deal personally with certain aspects of the funeral arrangements and that it was also desirable for her to return to Ghana as quickly as possible in order to raise money in her home country to defray the cost of the funeral and other expenses. 8. Mr Williams in the course of what, if we may say so, was a most moving and eloquent address, said that it was necessary for the Applicant to return home as soon as she practically could in order to make the necessary arrangements for the funeral and to be with her family, and that she was delayed in doing so only by the need to raise money to pay for the cost of the flight and by the need to make arrangements to care for her family. Mr Williams further submitted that, in any event, common humanity requires the Tribunal to hold that the Applicant could not have attended a hearing of her case so shortly after the death of her mother. Although the Applicant had been legally represented, Mr Williams submitted that it would be impossible in all the circumstances for the Applicant to give her case the attention which it needed. 9. Although we have great sympathy for the Applicant in her bereavement, we have regretfully reached the conclusion that we must reject Mr Williams' submissions. The Applicant did not impress us as a witness and we considered that some of her evidence, was rather vague. On the basis of the Applicant's evidence we are not satisfied that there was anything to prevent the Applicant from postponing her return to Ghana until 18 June, that is the day after the last of the three days scheduled for the original hearing. 10. So far as the Applicant's evidence about child care is concerned, we take the view that the Applicant would have had more time to make any necessary child care arrangements if she had travelled later. We have also noted that the Applicant lives with her husband at home and, on the basis of what the Applicant told us about the ages of her children and her other domestic arrangements, she has failed to satisfy us that there was any real difficulty in arranging child care so as to be able to travel to Ghana after the Tribunal hearing. 11. So far as arrangements in Ghana are concerned, the Applicant has again failed to satisfy us that anything that needed to be done would have been omitted if the Applicant had delayed her return to Ghana until 18 June. We have noted the Applicant's evidence with regard to the special position which she occupied as her mother's eldest daughter and about the need to raise money in Ghana to cover the cost of the funeral. However, we note that the funeral did not take place until after the Applicant's two other sisters had arrived. On the basis of the Applicant's evidence, we are not satisfied that the Applicant could not have postponed her journey to Ghana until after 17 June. 12. We also reject Mr Williams' submission that the Applicant could not be expected to attend the Tribunal hearing in the immediate aftermath of the news of her mother's death. This case was listed for hearing some 18 days after the Applicant received that tragic news, and the Applicant was represented by Solicitors. No doubt the Applicant would still be distressed about the death of her mother at that time, but we are not satisfied that her attention would have been distracted to the extent that she could not have given instructions to her representatives and give evidence on her own behalf. 13. For those reasons, although we have now had the opportunity of investigating the matter in far more detail, the position remains as it was when the Tribunal reached its decision on 15 June. We remain unpersuaded that the Applicant needed to be absent from this country at the time of the Tribunal hearing, and we are satisfied that the postponement was properly refused."
[4]Accordingly, standing back and looking at the history of this matter and having regard to the findings made by the Employment Tribunal based upon evidence given by the Appellant and submissions made by her representative, it is difficult to see any error of law made by the Employment Tribunal in refusing a review of this long-standing case.[5]The Notice of Appeal is a document dated 22 October 1999. It is a handwritten document with an attached typewritten annex. Counsel appearing for the Appellant today abandoned those grounds. As I have mentioned in our judgment, he was clearly correct to do so. We had considered them when reading the papers and could see no reasonably arguable points of law in them.[6]However, what Counsel sought to do was to substitute by way of amendment further and different grounds of appeal. He has handed in a handwritten document headed "Substituted Grounds of Appeal". This is in the following terms:
"1. At the review hearing on the 1 st September 1999 the Employment Tribunal misunderstood alternatively did not take proper account of or in the further alternative took no account of the oral evidence of the Appellant that when she made the application for postponement of the hearing and on 13 June 1999 when she left the United Kingdom to attend her mother's funeral in Ghana the intended date of the funeral was the 16 th June 1999. 2. The Employment Appeal Tribunal do admit further evidence in the form of the 'Funeral Invitation' to the Burial, Memorial and Thanksgiving Service for the late Madam Charlotte Efua Kyeadze-Sam, the Appellant's mother, to the funeral rites on Tuesday, 15 th June 1999, Wake-keeping on 15 th June 1999 and service at Komenda Methodist Church at 9:30 am on 16 June 1999 together with oral evidence from the Appellant as to the same."
[7]During the course of the hearing he also handed in to us a letter written by the Appellant dated 28 May, which is shortly before the hearing dates that were first set for the hearing before the Employment Tribunal, namely on 6, 7 and 8 June (if I have remember those dates correctly). But as we understood the submission of Counsel concerning this letter it related in fact to the hearing dates that had been re-set for 15, 16 and 17 June. We can understand that this may well be correct on the basis that the earlier hearing had been adjourned before 28 May 1999, but it is a point which needs to be covered in the statement I shall refer to later.[8]That letter refers to a telephone conversation with a Rachel Proudlove, who we understand to be an official at the Employment Tribunal at London (North).[9]Counsel's submission was that on instructions the Appellant's mother's funeral had by then been arranged for 16 June. That point is not made in the letter of 28 May and that letter is referred to by the Employment Tribunal when they first refused the adjournment, and no mention is made by the Employment Tribunal of the date fixed for the funeral. It is apparent from their Extended Reasons that they sought confirmation in respect of airline tickets which was provided. Again, we have no information as to the Employment Tribunal being informed when those airline tickets were provided that the date for the funeral had been set. Again, that is a point which needs to be covered in the statement to which I will refer.[10]We have also been shown a document which I shall describe as "a service sheet" (although I doubt that that is an appropriate description). It sets a timetable in respect of the funeral arrangements and states that the service would take place on 16 June followed by burial on the same day. We have no information as to when that timetable was set and who was responsible for setting those dates or the inter-relationship between those matters and the time that the Appellant obtained her tickets to return to Ghana.[11]We were further told on instructions (this is reflected in paragraph 2 of the Notice of Appeal) that it was the burial that was delayed to (I think) 24 or 25 June but the service in fact proceeded on 16 June 1999. On instructions Counsel was not entirely clear as to the evidence his client is said to have given to the Employment Tribunal, namely whether her evidence was simply that the funeral had been delayed which would be in line with the finding of the Employment Tribunal, or whether she gave an explanation that the service had not been delayed and it was the burial that had been delayed. This is again a matter which will have to be expressly covered in the statement to which I will refer.[12]Accordingly the new grounds of appeal that Counsel seeks leave to put in, assert either a misunderstanding by the Employment Tribunal or a failure to give any or proper weight to evidence given to it, coupled with an application to introduce further evidence. As to both, it seems to us that it is incumbent upon the Appellant to give a full and particularised statement setting out all matters upon which she seeks to rely. That statement should have been prepared before this matter came on by way of preliminary hearing, but it may be that Counsel was only instructed very late in the day and did not have the opportunity to prepare it and that he has done the best he can on instructions.[13]We are satisfied, having regard to the matters I have mentioned above, that the amended grounds do raise grounds of appeal that are reasonably arguable.[14]We will give leave to amend the Notice of Appeal by(i) striking out all of the existing grounds which for the avoidance of doubt we also dismiss, and(ii) adding the new grounds.[15]We will give leave to the Respondents to apply to vary or discharge that amendment at the substantive hearing of this appeal, or earlier on notice if so advised.[16]We will direct that the Appellant is to lodge with this Tribunal and serve within 14 days a sworn statement setting out all the matters she seeks to rely upon on this appeal.[17]Firstly, that statement should set out what she says she told the Employment Tribunal, either on the telephone or by letter or by way of the provision of documents prior to the first hearing and prior to the review hearing. It should set out what she says the content of her evidence was before the Employment Tribunal on the review hearing and it should set out her full reasons as to why any additional evidence she wishes to introduce was not given on that occasion.[18]Additionally, that statement is to contain full details of the new evidence she wishes to introduce into this appeal with all documents she relies on being annexed to that statement.[19]In giving this judgment, I have raised some points which should be covered by that statement. I shall not repeat them now. However, I repeat the point I made during the course of the hearing that if I was the Chairman of the Tribunal hearing this full appeal, I would not look with any sympathy upon an application at the time of the appeal to add further matters to that statement.[20]We will give the Respondents liberty to respond to that statement within 28 days of its service upon them. I will amend the time for giving the statement at 21 days because then they should have slightly longer to prepare it with a copy of this transcript available to those acting for the Appellant or the Appellant herself.