DR G AWAEKPO v ST MARY'S HOSPTIAL NHS TRUST [2000] UKEAT 610_99_1201

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 610_99_1201

Case No Appeal No. EAT/610/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

DR G AWAEKPOAPPELLANT

ST MARY'S HOSPTIAL NHS TRUSTRESPONDENT

Before

MR COMMISSIONER HOWELL QC

MRS R CHAPMAN

MR S M SPRINGER MBE

Date 12 January 2000

[1]APPEARANCES For the Appellant MS M STACEY (of Counsel) Appearing under the Employment Law Appeals Advice Scheme MR COMMISSIONER HOWELL QC : We direct that this appeal should go forward for a full hearing on the three issues set out in the amended grounds of appeal as originally drafted by His Honour Judge Hicks QC and annexed to the letter of 21st October 1999 sent by this tribunal to the appellant, with the following amendments: no amendment to paragraph 1; no amendment to paragraph 2 (those two paragraphs raise first of all, questions of infringement of contractual rights and second, failure to afford a fair hearing in relation to the exclusion of evidence that the appellant wished to give by way of re-examination) and with paragraph 3 amended so as to read as follows:

"3. The tribunal misdirected itself in holding that a breakdown of mutual trust and confidence was a reason for dismissal falling within section 98(1) or (2) of the Employment Rights Act 1996 and/or misdirected itself in holding that the decision to dismiss the applicant was fair in accordance with section 98(4) without finding whether either party, and if so which, was in breach of the duty not to undermine the relationship of trust and confidence between them."

[2]We reject the application to make further amendments to that third paragraph so as to turn it into an unlimited enquiry into whether the tribunal misdirected itself in relation to questions of fairness or reasonableness on the dismissal since, despite the arguments attractively put to us by Ms Stacey who appeared under the ELAAS scheme on behalf of the appellant, we are not satisfied that the further amendments she sought to make for that purpose and the criticisms that she made of the way the tribunal dealt with the factual issues on "fairness" in relation to the appellant's dismissal, amounted, when analysed, to more than an attempt to reopen factual issues which had already been determined by the tribunal having heard the evidence put before them.

[3]For the same reason, we are not satisfied that any further amendments should be made to paragraph 2 to extend the grounds for consideration at the full hearing to include wider questions of procedure in relation to the way the tribunal did or did not accept documentary evidence at an earlier stage, since we in common with the earlier Appeal Tribunal which considered this issue on 11th October 1999, are satisfied that the one arguable question of law which needs to be considered in this case on the Employment Tribunal's procedure, is contained within paragraph 2 of the amended grounds of appeal to which we have referred.

[4]In the course of the hearing before us Ms Stacey, and the appellant who also addressed us, sought leave to make further amendments to the grounds of appeal to introduce two (or three) further issues relating to racial discrimination, sexual discrimination and victimisation in the way the appellant had not been considered for promotion by the respondents to a higher post in March 1996. We do not consider that sufficient ground has been shown to us today to justify adding these further issues at this late stage of this appeal. In particular, these issues were not raised in the Originating Application to the Employment Tribunal, no amendment to which was ever made. The letters from that tribunal following the directions hearing, which could have been expected to refer specifically to these as additional issues if they had been raised as additional issues in the proper way at the stage when the tribunal was considering the arrangements for the hearing, have not been produced to us; and no reference to these points was made in the original Notice of Appeal to this tribunal by the appellant, as is conceded by her and Ms Stacey on her behalf.

[5]If it be the case that a letter from the tribunal can be produced giving directions for the hearing (of the application with which we are concerned) at the tribunal stage, and if it turns out that that letter did specifically include these additional issues as matters to be dealt with by the parties before the tribunal, then the appellant may reapply to the Employment Appeal Tribunal to have the question of inclusion of additional issues relating to these matters reconsidered in advance of the full hearing.

[6]If any such application is made, the appellant should also provide the letter she specifically told us she had herself written setting out these issues at the time the question of directions and the arrangements for the hearing of this application (in conjunction with her other applications to the tribunal) was being considered.

[7]That concludes our directions on the issues for the full hearing of this appeal.

[8]Subsidiary matters are first, that as asked for by the respondents in their written application of 17th May 1999, we direct that any further documents which are intended to be relied on by or on behalf of the appellant at the full hearing of her appeal should be lodged and copied to the respondents, within 28 days of the date of this Order; secondly, that the appeal should be set down for a full hearing in Category C with a time estimate of half of day; thirdly, that the Chairman's Notes of Evidence should be detained and added to the appeal documents, but only insofar as they record the submissions made by the appellant after her cross-examination on 5th March 1999 (at the time when she contends that there was a breach of natural justice to her in not being permitted to make further statements by way of re-examination). The Chairman's response dated 16th November 1999, which has been submitted to this tribunal but not, we think, yet released to the parties, dealing with what occurred at that stage of hearing is to be added to the appeal documents for the full hearing. The final matter is that skeleton arguments in accordance with the normal practice are to be exchanged and lodged not later than 14 days before the date fixed for the full hearing. [ The judge asks if there are any other directions that should be given at this stage? ]

[9]The directions that we have given will be transcribed and the appellant can then consider at that stage whether she would have any reason to make a further application for the question of additional issues to be reconsidered. [ The appellant addressed the judge on one thing that is related to that. The fact that there was an affidavit which has not been referred to .]

[10]I have referred to letters, which the appellant has told us were in existence and if they can be produced and they cast a different light on the matter from the documents that we have been able to see, then the matter may be reconsidered, otherwise, no.