DR M A RUBY v KINGS LYNN & WISBECH HOSPITAL NHS TRUST [2000] UKEAT 496_00_1810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 496_00_1810Case No Appeal No. EAT/496/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR M A RUBYAPPELLANTKINGS LYNN & WISBECH HOSPITAL NHS TRUSTRESPONDENT
Before
Mr Justice Charles Mr I Ezekiel Mr D NormanDate 18 October 2000
[1]APPEARANCES For the Appellant MR SETHI (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE CHARLES : We have before us today an appeal by way of preliminary hearing pursuant to our Practice Direction. The Appellant is a Dr Ruby and the Respondents are Kings Lynn & Wisbech Hospitals NHS Trust. Until recently Dr Ruby was represented by a firm of Solicitors called Lindley Johnstone who wrote to this Tribunal on 13 October, in response to a letter that we had written to them stating that they informed us that they were no longer retained in the matter and that Dr Ruby intended to represent himself at the hearing. The letter does not say when they ceased to act.[2]Today Dr Ruby has had the benefit of advice from an ELAAS representative, for which he should be grateful, and through that representative has produced a letter dated 9 October and therefore four days before the letter from the firm of Solicitors, which is a report by a Consultant Psychiatrist which states that he and has been is suffering from an atypical depressive disorder for the last three years or so.[3]Having regard to that report and opinion through the ELAAS representative, Dr Ruby invited us to adjourn the preliminary hearing today. We were told and accept from the ELAAS representative that he had difficulty in obtaining instructions from Dr Ruby and that, as we understood it, Dr Ruby's position was that this was a product of the depressive disorder referred to by the Consultant Psychiatrist[4]The ELAAS representative initially suggested an adjournment of about three months. We indicated that we were not happy with that and over the lunch time adjournment the position changed in that Dr Ruby is now indicating that he would wish to instruct the ELAAS representative who has acted for him today. As we understand it, he is hoping to instruct a new firm of Solicitors.[5]Accordingly, on that basis we have adjourned the case until 27 October which is a date when that representative will be available. It seemed to us, prior to the lunch time adjournment, that although the letter indicated that Dr Ruby was ill and was suffering from the disorder I have referred to, and that his illness was one which might cause him difficulty in presenting the case himself (when he would be in a position which he was not used to and one which could put pressure upon him) that his illness did not preclude him from giving instructions to either a lawyer or to a member of his family or a friend which would enable them to represent him on a properly informed basis before this Tribunal on a preliminary hearing. In this context I should say that Dr Ruby has already put in a substantial body of written material supporting his claim which we have read.[6]Given the change over the lunch time adjournment, it seems that that view is accepted because Dr Ruby is now content with an adjournment with a view to him instructing somebody during the period thereof, and he has in mind the present representative of ELAAS.[7]In any application for an adjournment it is, of course, important to also take into account the position of the Respondents. Although on this appeal the Respondents are not here because it is before us by way of preliminary hearing, it would be prejudicial to them if this appeal was adjourned over any lengthy period having regard to any continuing illness of Dr Ruby.[8]The allegations that exist in this case should not be left hanging over the head of the Respondents. Equally, should Dr Ruby succeed on this appeal, the memory of the relevant witnesses will dim further as time passes. I put down a marker now that an application for a further adjournment on 27 October is unlikely to be met by me as the Chairman of the Tribunal then sitting with sympathy. That does not mean, of course, that if circumstances have changed that the new circumstances would not be carefully considered but I put down the marker that, if a further adjournment were to be sought on 27 October, it would have to be supported by evidence and full reasons backed probably by medical evidence. It would also need to have clear evidence of attempts that have been made to instruct somebody to represent Dr Ruby, if he is not going to represent himself. His representative could be a lawyer or a family member or a friend. I say now that, if an equivalent position is reached next time as that which is reached today, the Tribunal may well simply deal with the preliminary hearing of this appeal on the written submissions that have already been put in or any additional written submissions.[9]Having looked at the papers I propose, having granted the adjournment, also to set out some of the background, as I understand it at present, so that if those who deal with the appeal on the next occasion can have the benefit of that and that position can be corrected if I have got it wrong on the papers.[10]Originally Dr Ruby made three claims. They were a claim for unfair dismissal, a claim for racial discrimination and a claim for breach of contract.[11]The appeal that is formally before us today relates to the decision recorded at the beginning of Extended Reasons which were sent to the parties on 28 February 2000. Those Extended Reasons refer to two other sets of Reasons, copies of which we have obtained and I hope that they have been included in the bundle that is available for ELAAS. If not, they can now be added. The Extended Reasons sent on 28 February 2000 relate to a hearing before an Employment Tribunal sitting at Norwich on 18 and 19 October 1999. Part of the decision recorded therein was a decision to dismiss Dr Ruby's breach of contract claim.[12]In the papers Dr Ruby has sought, in addition to appealing that decision as to the breach of contract claim, to bring before this Tribunal his claims for racial discrimination and unfair dismissal. The claim for racial discrimination is not referred to at all in his Notice of Appeal. Any appeal as to that would be well out of time. In fact, it appears from the papers that this matter was dealt with by the Employment Tribunal on a time point, namely that it was brought by Dr Ruby out of time. The racial discrimination claim was dealt with by the Employment Tribunal on 23 September 1998, when the Employment Tribunal decided that it would not be just and equitable to allow the claim to proceed out of time. The Extended Reasons for that decision were sent to the parties on 8 October 1998.[13]It therefore appears that, so far as the racial discrimination claim is concerned, it was dealt with on a time point. On a first reading the Extended Reasons relating to that decision show that the Employment Tribunal considered the correct test in connection with that time point. In respect of that claim therefore Dr Ruby will have to deal with why he says the Employment Tribunal erred in their approach to that exercise of their discretion and further there is the point as to why he should be allowed to bring that appeal out of time.[14]As to the claim for unfair dismissal, on the face of the Extended Reasons relating to the breach of contract claim, it is stated that this claim should stand adjourned until further order and that decision is referred to by Dr Ruby in his Notice of Appeal. That decision is reflected in Summary Reasons relating to the hearing on 18 and 19 October 1999, which are also referred to in the Extended Reasons dated 28 February 2000. Those Summary Reasons were sent to the parties on 17 November 1999. Again, we have obtained them from the Employment Tribunal and the representative of ELAAS should make sure that they are available in the bundle. Paragraph 1 to 3 of those Summary Reasons deal with the unfair dismissal point and conclude, having regard to the fact that the contract was one of a series of contracts negotiated with different National Health Trusts and that his total period of employment was six months, that it was outside the jurisdiction of the Employment Tribunal to hear the claim. It appears, therefore, from that that the unfair dismissal point was dealt with on a jurisdictional point and Dr Ruby will have to demonstrate why he says that was wrong. His present documents simply include a mass of information setting out the approach to an unfair dismissal claim in respect of which the Employment Tribunal does have jurisdiction.[15]There is on the papers before us however, some confusion in respect of the unfair dismissal claim which flows from a letter from a firm of Solicitors called Fieldings Porter whom Dr Ruby indicated today had ceased acting for him some time ago. That letter appears at page 22 of our bundle and includes the following paragraph. It says:
"… as from the 10 th August 1999, we were dis-instructed in this matter by Dr Ruby. In relation to the hearing on the 11 th March 1999, in which Dr Ruby sought review of the decision of the Employment Tribunal sitting on the 3 rd September 1998, our Mr Colvin who attended and represented Dr Ruby was instructed to and did request that the Unfair Dismissal Claim be withdrawn. As far as the writer can recall, the Unfair Dismissal Claim was recorded as withdrawn by the Tribunal."
We note that that letter was written shortly before the hearing before the Employment Tribunal on 18 and 19 October 1999.[16]That letter is followed in our bundle at page 23 by a Certificate of Correction which is dated 27 March 2000 which, of course, is after the hearing before the Tribunal in mid-October, saying:
"The application for unfair dismissal is dismissed on withdrawal in accordance with the letter of the applicant's then solicitors dated 5 October 1999."
[17]It may therefore be that before the hearing before the Employment Tribunal on 18 and 19 October took place the unfair dismissal claim had in fact been dismissed on withdrawal and that is a matter that should be considered by anyone representing Dr Ruby. I add that if the matter had proceeded today it is likely that we would have considered it on the assumption that the unfair dismissal claim had not been dismissed on withdrawal but had been stayed as recorded in the Extended Reasons relating to the hearing on 18 and 19 October. But it seems to us that that might be a favourable assumption so far as Dr Ruby is concerned. Given the uncertainty as to what has happened in respect of the unfair dismissal claim and the adjournment gap, this Tribunal will expect some explanation on 27 October as to what happened in respect of the unfair dismissal claim and I will direct that an officer of this Tribunal writes to the Employment Tribunal for clarification as to precisely what orders were made in respect of the unfair dismissal claim.[18]That leaves the breach of contract claim which is the claim dealt with in some detail in the Extended Reasons sent to the parties on 28 February 2000 which, as I have said, incorporate the earlier Extended Reasons. I do not propose to say anything more about that part of the appeal at this stage. Plainly, that is the part of the appeal upon which Dr Ruby has focused most attention.[19]It may be that the points I have made as to the other aspects of the appeal will mean that Dr Ruby and those who assist him will reconsider whether or not they should form any part of the application on 27 October 2000.