WEST MIDDLESEX HOSPITALS NHS TRUST v MRS A E BASLEY [2000] UKEAT 899_99_0412

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 899_99_0412

Case No Appeal No. EAT/899/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

WEST MIDDLESEX HOSPITALS NHS TRUSTAPPELLANT

MRS A E BASLEYRESPONDENT

Before

Mr Justice Lindsay

Date 4 December 2000

[1]APPEARANCES For the Appellants MR P ALLEN (Solicitor) Messrs Beachcroft Wansbroughs Solicitors 100 Fetter Lane London EC4A 1BN For the Respondent THE RESPONDENT NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT): We have before us, by way of a full hearing, the appeal of the West Middlesex Hospitals NHS Trust ('the Trust') in the matter Mrs A E Basley v West Middlesex Hospitals NHS Trust . Today, Mr Allen has appeared for the Trust and no one has appeared for Mrs Basley. The Trust received an oral decision in its favour dismissing Mrs Basley's claims. Then, without any steps having been taken by Mrs Basley or indeed by any party, that decision was purportedly reviewed by the Employment Tribunal, of its own motion, after an exceptionally long gap. The Trust appeals against the outcome of that review which we shall have to return to in more detail.

[2]The chronology is, happily, unusual. On 10th June 1998 Mr Ann Basley presented an IT1 claiming:

"Bullying, lack of trust, loss of confidence, false accusation – theft, discrimination due to disability, submitting a false statement (sick leave)."

She had been employed by the Trust from August 1993 to April 1998.

[3]On 6th July 1998 the Trust signed its IT3 which alleged a different slant on things. They said, inter alia:

"Mrs Basley resigned from her position on 18.03.98 giving one months notice. However Mrs Basley requested to leave the Trust early and not to work her complete notice period. This was discussed with Mr Brothwood – Patient Services Co-ordinator (in Mrs Maher's absence), and a date was agreed. There were a number of misunderstandings between Mrs Basley and her colleagues during her notice period which have since been clarified."

That IT3 was accompanied by a copy of the alleged letter of 18th March 1998, which said this (it was directed to Lynne Maher, Assistant Director Clinical Support Services):

"Dear Lynne Please accept my notice of resignation for one month as from the above date as I have been offered a new opportunity which will including working for National Vocation Qualification which I have been keen to do for some time. I have enjoyed my work during my time in Day Surgery and will be sad to leave, but feel that it is time to move forward, so may I take this opportunity to thank you for your support in that last few months. Yours sincerely Ann Basley"

[4]On 25th August 1998 there was a one day hearing at London (South) under the chairmanship of Mr I S Lamb, sitting with Mrs S Maskell and Mr W McGinniss. On that day, an oral decision was given by Mr Lamb on behalf of the tribunal at the end of the hearing and the oral decision was that Mrs Basley's complaints were dismissed. No one asked for extended reasons. No summary reasons appeared. No one sought to appeal.

[5]At this point we need to look at some Rules. Rule 10(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 says:

"The decision of a tribunal, which may be given orally at the end of a hearing or reserved shall be recorded in a document signed by the chairman."

But no document was signed in or about August 1998. Sub-rule (5) says:

"The clerk shall transmit the documents referred to in paragraphs (2) … to the Secretary who shall enter them in the Register and shall send a copy of the entry to each of the parties and where the proceedings were referred to the tribunal by a court, to that court."

No document was thus transmitted. Nothing was put in the Register in or about August 1998. No copy was sent to the parties in or about August 1998. The decision, it seemed, remained entirely oral. But no one complained of it.

[6]Then, remarkably, a document called "Interlocutory Order" came into existence on or about 10th February 1999 and was sent to the parties on that day. On the very same day there also came into existence a written record of the decision of 25th August 1998 and extended reasons for that decision. Both the interlocutory order and the written decision and extended reasons were sent to the parties on 10th February 1999.

[7]The unanimous decision was as follows:

"The unanimous decision of the Tribunal is that the complaints set out in the Originating Application are dismissed."

So to that extent the written decision with its extended reasons accorded entirely with the oral decision that had preceded it in late August 1998.

[8]The interlocutory order said this:

"In accordance with the provisions of Rule 11(3) of the Industrial Tribunal Rules of Procedure 1993, the Tribunal hereby sends notice to each of the parties that it is proposed to review the decision by which the complaints made in the Originating Application were dismissed and the parties are hereby given an opportunity to show cause why there should be no review."

[9]The Rules as to review are contained in Rule 11. Rules 11(1) and (2) say this:

"(1) Subject to the provision of this rule, a tribunal shall have power, on the application of a party or of its own motion, to review any decision on the grounds that – (a) the decision was wrongly made as a result of an error on the part of the tribunal staff; (b) a party did not receive notice of the proceedings leading to the decision; (c) the decision was made in the absence of a party; (d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or (e) the interests of justice require such a review." (2) A tribunal may not review a decision of its own motion unless it is the tribunal which issued the decision."

There is no means of knowing, looking at the interlocutory order, who composed the tribunal that determined as is there recorded. Mr Lamb plainly did, but whether Mrs Maskell or Mr McGinnis did so or not does not appear. Rule 11(3) says:

"(3) A tribunal may only review a decision of its own motion if, within the period beginning with the date of the hearing and ending with the fourteenth day after the date on which the decision was sent to the parties, it has sent notice to each of the parties explaining in summary form the ground upon which and reasons why it is proposed to review the decision and giving them an opportunity to show cause why there should be no review."

It is to be noted that as the decision, although orally announced on 25th August 1998 was not sent to the parties until 10th February 1999, the notice inviting the parties to show cause why there should be no review was not out of time but within time, notwithstanding the huge lapse of time since the oral decision. So far as we can tell (and Mr Allen has said nothing to counter this) the interlocutory order of 10th February 1999 cannot be faulted in law, at all events if it was the creature of all three who had sat on the case on 25th August 1998. We have no good reason to think that it was not the reature of all three. So the position is that come 10th February 1999 there was a decision with extended reasons and simultaneously a proposal, in time, to review that decision.

[10]On 28th May 1999 there was a hearing again at London (South) under the chairmanship of Mr I S Lamb with Mrs Maskell and Mr McGinnis, the purported review. The unanimous decision was then as follows:

"(i) the decision of the Tribunal promulgated on the 10 February 1999 is hereby reviewed and it is directed that there should be a further hearing, with an estimate of two days, on a date to be notified, to hear and determine the issues set out below; (ii) the issues to be determined are whether the Respondent unlawfully discriminated against the Applicant as a disabled person, by- (a) dismissing her, and/or (b) subjecting her to a detriment by the provision of a reference which was inaccurate and/or delayed."

That review decision was sent to the parties on 1st July 1999.

[11]On 2nd August 1999, well in time, the Employment Appeal Tribunal received the Trust's Notice of Appeal.

[12]At the ex parte preliminary hearing at the Employment Appeal Tribunal on 1st December 1999 the matter was sent forward to a full hearing and the EAT raised some questions to be put to the Chairman, Mr Lamb. In paragraph 10 of the judgment of the preliminary hearing, the following appears:

"10 The Chairman should be asked by the EAT, with copies to be sent by the EAT to the parties when they are received here at the EAT, whether the oral announcement of the Decision on 25 August 1998 led immediately, or shortly thereafter, to the calling into existence of a document within Rule 10 (2) and if not, why not? And whether and when was there a transmission to the Secretary and entry into the Register within Rule 10 (5) and, if there was none until 10 February 1999, why was there such a gap left between 25 August 1998 and 10 February 1999? We will be greatly assisted when the matter comes back to the EAT for a full hearing to know the answers to those questions."

[13]In an undated letter received on 9th March 2000 Mr Lamb says:

"… 2. The Tribunal I chaired heard the case on 25 August 1998. A decision was given orally on that date. The written reasons for the decision were given in extended form in the document which was entered on the register and sent to the parties on 10 February 1999. 3. Therefore, the oral announcement of the decision did not lead immediately or shortly thereafter to the calling into existence of a document within rule 10(2). Entry into the register within rule 10(5) did not take place until 10 February 1999. 4. I regret to say that I am unable to explain why that delay occurred. I assume the file was in my possession, or available to me, but I cannot now say what circumstances may have prevented my drafting the decision and I am unwilling to speculate on them."

A very poor explanation for a remarkable delay.

[14]As we mentioned earlier, we have been able to detect no error of law in the interlocutory order of 10th February 1999. But what about the review decision, sent to the parties on 1st July 1999?

[15]We look again, first of all, to the grounds for a review in Rule 11(1). It is plainly not an Rule 11(1)(a) case, which depends on an error on the part of the tribunal staff; that is not mentioned, nor is it a (b) or (c) or (d) case, but (e) is the interests of justice. As to whether the tribunal considered that this was an interests

justice case, they say in their paragraph 10:

"The provisions of Rule 11(1)(e) are very wide. We can take them to apply to a situation where the law as understood at the date of the Tribunal decision is "changed" by the date of promulgation of the written reasons: compare Digital Equipment Ltd v. Clements No. 2 [1997] ICR 237. We do not say finally and conclusively that the relevant law has changed in respect of the circumstances of this case. We simply state that it is now apparent that there is an arguable basis for complaint. It is for the Tribunal which finally determines this case to state the applicable law as it finds to be."

It does not there say in terms that this was regarded as a review in the interests of justice, though presumably that was what was intended. It cannot have been a review on account of a change of the law because there is no conclusion there that there has been a change and change in the law is not a ground for a review of itself. If the Trust were to ask itself what were the interests of justice that led to the review it is hard to see what the answer disclosed by these extended reasons was. If it was that the law applicable as at 25th August 1998 was misunderstood or misapplied, what was the misunderstanding or misapplication? That is not explained. If it was that the law applicable as at 25th August 1998 had changed by 10th February 1999, well then, what was the change that the tribunal found to exist, given that they had said "We do not say finally and conclusively that the relevant law has changed". Even if there had been a change in law by 10th February 1999, would not the interests of justice have needed to reflect that the change could not have been taken into account as a reason occurring before the promulgation of extended reasons if only those extended reasons had been promulgated without the remarkable delay, entirely unexplained, from 25th August 1998 to 10th February 1999, which we see in fact here occurred, a delay which was not responsibility of any party.

[16]At the very lowest, it seems to us, that there is here an error of law in that the decision of 1st July 1999 fails the familiar test of Meek v City of Birmingham District Council , the Trust would not be able to determine why it was that the review had taken place, given that the interests of justice that presumably were relied upon were not explained. But that is not, in any event, an end of the matter. Rule 11(7) provides:

"(7) On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision under the chairman's hand; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal."

But plainly the decision of 1st July 1999 did not amount to a confirmation of the earlier decision. Was it then varied or was it revoked? One cannot tell. On the face of things, it is not revoked because the tribunal refers to the new tribunal possibly accepting the old one's findings of fact. The tribunal say, in paragraph 13:

"13. We take the view that it is appropriate for a fresh Tribunal to consider this case. For the avoidance of doubt, the subject matter of the next hearing is limited to the issues set out above. The case has been re-opened only on the basis of the matters on which no evidence and full argument were considered previously. However, it is for the Tribunal which hears the case to determine how much our findings of fact are to be accepted, varied or supplemented, bearing in mind the limited ambit of the evidence we considered."

There could not be findings of fact by the old tribunal to be borne in mind, if necessary, by the new, if the decision had been wholly revoked. So there is argument for believing that the decision was not revoked. But, equally, there is argument that it was not varied either because variation, surely, suggests that the substance of a decision is maintained but that there is some relatively minor amendment to it, and that does not seem to have been the case here at all. Then, very curiously, the tribunal purports to give directions. In paragraph 11 they say: "We determine the relevant issues for consideration to be as follows:- …" and it sets out two issues. We are unclear what power the tribunal thought it was exercising. It mentions none and we have not been able to see any that were available to it to give directions in the way that it did.

[17]Accordingly, we set aside the decision that was promulgated on 1st July 1999. It fails the Meek v City of Birmingham District Council test and it purports, by way of review, to do things which consist neither of confirming nor of varying nor of revoking the earlier decision.

[18]Mr Allen, who has presented his argument with great care and skill, has sought to persuade us that we ought not merely to set aside the decision of 1st July1999 but ought to move further and say that, properly considered, the review could conceivably have come to no proper decision other than, in effect, to confirm the original decision, as orally announced on 25th August 1998.

[19]We see a great deal of force in that argument, but on balance, have felt that it is not really an argument for us. It is more an argument that can properly be addressed to the tribunal on a second hearing of the notice to show cause why there should be no review. Because, even if we strike out the decision of 1st July 1999, we are left with an apparently valid decision of 10th February 1999, which is the decision which gave rise to the opportunity to show cause why there should be no review. We are a little troubled also by the fact that Mrs Basley has not appeared before us today and the argument that there is no possible conclusion other than that the original decision should be confirmed is a decision that raises quite grand issues as to what the ability to change an oral decision is in the interval between an oral decision being disclosed and a written version and written extended reasons being later promulgated. Also, whilst we have a lot of sympathy for the position of the Trust, we have thought it better not to embark on that task but rather to let it be a component in the argument that the tribunal shall hear on the second hearing of the opportunity to show cause why there should not be a review.

[20]The parties, as it seems to us, have good reason to be disappointed at the way in which this matter has been handled by the tribunal. There was that enormous gap between May 1998 and February 1999, which received no explanation other than the inadequate one from Mr Lamb that we have so far read.

[21]The tribunal that hears the review for the second time must necessarily consist of the individuals who heard it before, namely: Mr Lamb, Mrs Maskell and Mr McGinnis. They will need to strive to regain the confidence of the parties in this matter.

[22]On the second review the parties are entitled to expect, this time, to be told in terms whether the original decision is confirmed, revoked or varied and, if varied, in what respects it is varied. They should also expect to be told clearly, if the decision is reviewed, which of the grounds of Rule 11(1) is actually relied upon; and, if the interests of justice are relied upon, they can expect to have it stated to them that that is the case and to have those interests set out so the balance which the tribunal strikes between the competing interests of justice can be seen on a simple reading of their decision. It is not for us to try and anticipate the outcome of the second review, although Mr Allen has presented a powerful argument on the chronology of the case law, but that is not for us, it will be a matter for the tribunal below.

[23]We set aside the decision of the 1st July 1999. The Employment Tribunal is to arrange a fresh hearing of the notice to show cause dated 10th February 1999. The tribunal that hears that fresh hearing must consist of the three individuals who first heard the case on 25th August 1998.