MS L STEWART v (1) THE GOVERNING BODY OF CHERRY GARDEN SCHOOL (2) LONDON BOROUGH OF SOUTHWARK [2000] UKEAT 687_00_0811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 687_00_0811Case No Appeal No. EAT/687/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS L STEWARTAPPELLANT(1) THE GOVERNING BODY OF CHERRY GARDEN SCHOOL (2) LONDON BOROUGH OF SOUTHWARKRESPONDENT
Before
His Honour Judge A WilkieDate 8 November 2000
[1]APPEARANCES For the Appellant MS MELANIE WHEATLE Representative JUDGE A WILKIE QC This is an appeal by Lystra Stewart against the Decision of the Employment Tribunal sitting at London South, dismissing her claim for race discrimination and unfair constructive dismissal, against the governing body of Cherry Garden School and the London Borough of Southwark.[2]The Decision is contained in a document some 20 pages and 67 paragraphs long, and was sent to the parties on 14 April of this year. It followed a hearing which was conducted on six separate dates in March this year, the first date being 6 March and the last date being 14 March.[3]Ms Stewart was unrepresented at the hearing of her claim but before us she has been represented by a friend, Melanie Wheatle. Before going any further, we may say that we are extremely grateful to Ms Wheatle for the very fair, measured and clear way she has presented this appeal, and indeed the ability with which she has addressed us. She has told us that solicitors who were acting for Ms Stewart at one stage of the proceedings, Russell Henry & Co of Balham High Road in Balham, have in fact ceased to exist as a practice and that is why Ms Stewart was relying on her. Without any disrespect at all to Russell Henry & Co, Solicitors, we do not think that there has been any major disadvantage because Ms Wheatle has done such an excellent job.[4]The grounds of appeal initially took two points: one was an allegation of improper conduct and bias on the part of the Tribunal, but that is no longer part of this appeal, that having been struck out on 6 September of this year. The remainder of the appeal essentially is to the effect that the Tribunal misdirected itself in disregarding a letter of 3 March to the Tribunal from that firm of solicitors, Russell Henry & Co. The background to that letter was a series of directions made by the Employment Tribunal by way of Interlocutory Orders on 7 September 1999. The Orders made were that Ms Stewart should send to the Respondents her witness statements and copies of documents, upon which she would rely, by 29 October; thereafter the Respondents would furnish her and the Tribunal their fully pleaded case by 17 December, as well as all their witness statements. She was then given leave to submit any witness statements in reply by 14 January. The case was to be listed for 10 days commencing 6 March and the Respondents were ordered to produce an agreed bundle 14 days before that hearing date. That letter concluded with the following paragraph:
"The directions set out above rank as orders for the purposes of Rule 4 of the Employment Tribunals Rules Schedule 1. Failure to comply with them may lead to the Originating Application or, as the case may be, the Notice of Appearance being struck out. The dates of hearing having now been fixed with plenty of notice and after consultation with the parties will not be altered save in the most pressing circumstances."
[5]Following that series of directions, there was a letter written by Russell Henry & Co to the London Borough of Southwark, Legal Contract Services, who were acting for the Respondents in this matter, dated 23 September, making a specific request for certain categories of document namely: minutes of disciplinary hearings, the original diaries of two employees of the London Borough of Southwark, Mr Fernandez and Mr Hall, and Ms Stewart's personal file.[6]Ms Stewart has informed us, and we see no reason to doubt it, that she complied with the Order requiring her to furnish her witness statements and documents by 29 October, as required. The Respondents failed to comply with the Order on them to send witness statements and their fully pleaded case by 17 December. As a result of that failure, Russell Henry & Co wrote to the Tribunal on 5 January, complaining of that, asking for extra time for her evidence in rebuttal to be served, namely 30 days after the Respondents' evidence was served, but concluding as follows:
"Given that the hearing of our client's application is due to take place on 6 March 2000, we would be grateful if the Tribunal would consider making an order for compliance before 21 January 2000, or have the Defence Struck Out in default."
[7]Again, we are informed and see no reason to doubt the accuracy of this information, that following this letter, an Order was made, extending time for the Respondents to comply with the previous Order to 21 January. It is the case, however, that they did not comply with that Order by 21 January, nor did they produce any bundle for the hearing which was ever agreed. We are told that what they did was that on 2 March, they served a bundle of documents which included certain witness statements. This was some four days before the hearing was due to start. The letter to which reference is made in the Notice of Appeal is dated 3 March. In that letter, what is said is this:
"The witness statements were only served by facsimile on the evening of 24 February 2000 and even then were not complete. The final witness statement was only received after 6.00 pm on 28 February 2000. The amended Notice of Appearance was also received early this week. The witness statements should have been filed and served on 17 December 1999 and we were unable to prepare our client's replies because of the delay in serving them. Last year, we made a request for the job descriptions of the various personnel to be disclosed, but these were not produced. Upon inquiring of the Respondent recently, we were informed that these were irrelevant."
They also raised the question of Mr Fernandez not producing a witness statement. In fact Mr Fernandez was not called as a witness. They also pointed out that certain of the witness statements were not signed. They also raised the question of Mr Fernandez's diary or notes of incidents and requested hand-written notes of the minutes of hearings, but this was not forthcoming.[8]All of these matters were raised in the context of their saying that their client's case could not be properly prepared, particularly given the fact that she was going to be representing herself. They conclude this letter as follows:
"We therefore request that the Tribunal Panel takes the above into account when considering this matter, bearing in mind the fact that our client will be without legal representation."
Ms Wheatle agrees that this letter, although making many significant complaints about the Respondents' ignoring of previous Orders of the Tribunal, does not contain any express request that the hearing, scheduled for 6 March, should be adjourned. She also informed us, on instructions from Ms Stewart, that no request was made by her on 6 March for an adjournment of the case, essentially she says that she was highly nervous, overwhelmed with the situation, and just permitted the thing to go ahead.[9]As we have indicated, the Decision of the Employment Tribunal is a lengthy one. It is an extremely careful and meticulous Decision, dealing as it does, with a large number of issues, both legal and factual. One of the issues with which it dealt was the question of who the employer actually was. That required a bit of teasing out because of the peculiar statutory framework affecting local education authorities and in particular schools maintained by local education authorities.[10]Ms Wheatle does not attack any of the conclusions or analyses of the Employment Tribunal as such. What she says is that because of the failure on the part of the Respondents to comply with the Orders of the Tribunal and, in effect, presenting Ms Stewart with a huge amount of documentation and material a few days before the hearing was due to start, she was hugely disadvantaged in presenting her case. She has identified a number of specific points, which, had she had the time and leisure to prepare the case properly, she says could have been presented to the Tribunal.[11]It is not for us to speculate whether, if those points had been made, it would have made any difference to this Tribunal's Decision. However, we have no doubt that this Tribunal would have taken note of these points, as they appear from their Decision to have been meticulous in taking note of all the points that were made to them by both sides.[12]This is a case which disturbs us considerably. Directions were made some 6 months before the hearing date which was fixed for 6 March. The parties agreed a sensible timetable which, had it been adhered to, would have given both sides a fair opportunity to prepare their case, regardless of whether either side was legally represented. Ms Stewart, we are told, complied with her part of that series of directions, but it is apparent that the Respondents simply failed to do so, not just marginally, but pretty spectactularly. Not only that, they failed to comply with the further directions which were made, their having failed to comply with the original directions.[13]We have little doubt but that if Russell Henry & Co, on Ms Stewart's behalf, or Ms Stewart herself, had applied that the hearing be adjourned in order to give her an opportunity properly to prepare her case, then having regard to the very late date when all these documents were served on her, she would have had a very strong case for such an adjournment. We, of course, cannot speculate whether she would have been given the adjournment, and if so, whether a refusal of the adjournment would have been right or wrong, but suffice it to say that if she had applied for the adjournment, and it had been refused, then given the facts as we understand it, there certainly would have been an arguable appeal against such a refusal.[14]However it is clear that she did not ask for the case to be adjourned, nor did solicitors acting on her behalf ask for the case to be adjourned. It may well be that there were good reasons for that, we do not know, but the solicitors, who had acted perfectly responsibly throughout, wrote a very carefully worded letter in which they specifically fall short of asking for an adjournment. It seems to us therefore, however unfortunate it may be, that there is simply no basis upon which Ms Stewart can appeal against this Decision. In effect, what she has to say is that the Tribunal acted erroneously as a matter of law in failing, of its own initiative, to adjourn a case when, not only was she not applying for one, but the solicitors acting on her behalf had not asked for one either. We simply do not think that that is a possibly sustainable argument.[15]Therefore, unfortunately, as we see it, we feel constrained to dismiss this appeal, but we have taken the trouble of setting out our reasons in full because this is a case where the progress of it, and in particular the conduct of the Respondents, does disturb us greatly.