MRS E KNIGHT v LONDON CENTRAL BUS CO. [2000] UKEAT 443_00_2911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 443_00_2911Case No Appeal No. EAT/443/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS E KNIGHTAPPELLANTLONDON CENTRAL BUS CO.RESPONDENT
Before
Mr Justice Bell Mr D Norman Mr T C ThomasDate 29 November 2000
[1]APPEARANCES For the Appellant MR P MARTIN (of Counsel) Messrs Leigh Williams Solicitors Kings House 32-40 Widmore Road Bromley Kent BR1 1RY MR JUSTICE BELL : This is Mrs Knight's appeal against the decision of the Employment Tribunal held at London (South) on 20th and 21st September 1999 and promulgated on 22nd February 2000 rejecting the applicant's claims that she was dismissed by the respondent for a health and safety reason; that she was dismissed for having asserted a statutory right; that she had been directly discriminated against and victimised contrary to the Sex Discrimination Act 1975 , and that she should however succeed in respect of claim and counterclaim relating to the deduction of monies from pay which was due to her at the termination of her employment. The tribunal was put in the position of having to decide whether to accept Mrs Knight's evidence of events, in particular her allegation of sexual harassment by two members of management at the bus garage where she worked or to accept the evidence of those managers and a third manager, who gave evidence for the respondent. At the end of the day the tribunal came down firmly in favour of the evidence of the respondent's witnesses and against that of Mrs Knight.[2]Mrs Knight's Notice of Appeal originally contained four grounds. The first two grounds challenged the merits of parts of the tribunal's decision and the fourth alleged that she was not properly represented. Mr Piers Martin who appears for Mrs Knight before us today has made it clear that grounds 1, 2 and 4 are not pursued and we say here and now that therefore the appeal will not be permitted to go ahead on those three grounds. However, the third ground of appeal reads as follows:
"The condition I was in the tribunal regarding post-traumatic stress disorder showed. Therefore, the hearing should have been adjourned."
Mr Martin wishes to pursue that ground on Mrs Knight's behalf, amended or, he would say, expanded as follows:
"The Chairman's decision not to allow an adjournment as requested by my representative, because I was suffering a post traumatic stress disorder, and in no fit state to contribute to my case, was perverse and or obviously wrong."
[3]In support of that third ground and the proposed amendment, Mr Martin has produced on Mrs Knight's behalf an affidavit of Paul John Summers, sworn on 27th November 2000. Mr Summers describes himself as a driver and he was Mrs Knight's representative at the Employment Tribunal hearings on 20th and 21st September 1999. In his affidavit he speaks of Mrs Knight being in considerable distress while waiting for the hearing and during the hearing. He speaks of her particular distress when she had to confront or was accidentally confronted by the respondent's witnesses, one of them in particular against whom she had made allegations. He speaks of Mrs Knight running out of the hearing room crying so that he had to spend some time consoling her. He says that he made it clear to the Chair of the tribunal that the appellant was deeply upset, indeed, he says it would have been obvious to anyone what state she was in. At paragraph 9 of the affidavit he says:
"I recall at this point that I did ask for hearing to be postponed. I recall that because I asked for a postponement, that the fact that the hearing had been postponed already was discussed. As a concession the Chair directed only the Respondent's witness giving evidence or those who had given evidence were allowed in the hearing room."
Although it does not appear in Mr Summers' affidavit, Mr Martin tells us that on one occasion, and perhaps it was the occasion when Mr Summers says he asked for the hearing to be postponed, Mr Summers referred to certain documents in the bundle before the tribunal which indicated a history of poor psychological health; in particular at B2, a doctor's certificate dated 23rd February 1999 that Mrs Knight should refrain from work for two weeks, the diagnosis being post traumatic stress disorder; then at J a letter dated 1st March 1999 from a counselling psychologist, Ms Gill Francombe, to Mrs Knight speaking of the referral of Mrs Knight to Ms Francombe by Dr O'Donnell for counselling and then at K a pro forma letter dated 26th April 1999 from Ms Francombe to Mrs Knight offering an appointment for an initial assessment on 24th May 1999. On that basis Mr Martin would like to argue that it was wrong and unfair to Mrs Knight for the tribunal to proceed with its hearing at the time and in the way it did rather than offering an adjournment so that Mrs Knight could recover and serve herself properly in her evidence and the instructions she gave to Mr Summers who was representing her.[4]There is no mention of any application for an adjournment in the extended reasons for the tribunal's decision. Mrs Knight applied for a review of the decision. She backs that application up with documents which are in our bundle. One, at page 3 of our bundle dated 3rd March 2000 is from a Ms Warren, Co-ordinator of a counselling service offering Mrs Knight 24 sessions of counselling. The next is a letter dated 7th March 2000 signed by Dr O'Donnell saying that Mrs Knight had been attending his surgery since 23rd February 1999 and expressing the doctor's view that her symptoms were consistent with post-traumatic stress disorder. Of course those reports came after the tribunal hearing. They were put before the Chairman on the application for review and she rejected the application for review.[5]The position we find ourselves in today is that we have cannot offer a useful opinion on the prospects of success of this appeal on the material presently before us. We do think that there is enough in the matters which we have recounted to justify further enquiries to the extent of inviting the Chair of the tribunal to send her written comments on the allegations which we have described and to send photocopies of her manuscript notes if she would be so kind, with some kind of marking of any note which was made of any application to adjourn or postpone the hearing or of any note of distress shown by Mrs Knight or of any note of special arrangements which were made in respect of the respondent's witnesses or representatives remaining in the hearing room.[6]The question then arises whether we should make those directions and put the appeal over for a further preliminary hearing or allow the matter to go ahead to a full hearing between the parties. On balance, we have decided that it would be better to take the latter course. If we take the former course it may be that the matter will go ahead to a full appeal hearing anyway, in which case there will be a unnecessary further preliminary hearing.[7]One of us is familiar with a case which unhappily we have been unable to identify by name and reference to the report. It was an appeal to the divisional court from magistrates who were given a doctor's certificate claiming that the defendant to an information in the magistrate's court was unwell. He did not attend. The magistrates went ahead with the hearing and convicted him. He appealed to the divisional court and the effect of the decision of the divisional court consisting of Bingham LJ, as he then was, McCullough J, was that if there was plausible evidence of illness on the part of the defendant, then fairness demanded that the adjudicating tribunal at least made further enquiries as to the true state of health of the defendant before proceeding with the matter. We regret not being able to further identify the case. It is reported in Criminal Law Review somewhere and also fully reported in the Justice of the Peace Reports . It if can be found, it may help the Employment Appeal Tribunal in this case in due course.[8]The judgment we have given has taken rather longer than we anticipated. We have set out our thinking in the hope that it may help the Chair of the tribunal in this case in deciding what assistance she can give the Employment Appeal Tribunal as to the procedures and the events before the tribunal and so that the basis upon which we have let the matter go forward is clear to the Employment Appeal Tribunal which hears this appeal.[9]We give leave to Mrs Knight to amend her grounds of appeal to contain the one ground of appeal further expanded as we have indicated. We direct that an amended Notice of Appeal be filed with this tribunal's office within seven days. We give liberty for further evidence on Mrs Knight's behalf to be filed and in particular, if it is though fit, for a further affidavit from Mr Summers dealing with precisely what if any reference he made to the medical certificate and letters in the tribunal bundle to which we have referred. We give leave to the respondent to file any evidence in reply.[10]It seems to us that it should be possible to dispose of this matter in half a day, Category B. Skeleton arguments to be filed by both sides not less than 14 days before the day fixed for the appeal hearing.