MS HANNAH SAM v GUY’S & ST THOMAS’S HOSPITAL TRUST [2001] UKEAT 0156_00_1909

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0156_00_1909

Case No Appeal No. EAT/0156/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS HANNAH SAMAPPELLANT

GUY’S & ST THOMAS’S HOSPITAL TRUSTRESPONDENT

Before

Ms Recorder Cox

Date 19 September 2001

[1]APPEARANCES For the Appellant MR GEOFFREY D CONLIN (of Counsel) Messrs Collisons & Co Solicitors Nationwide Building 1 & 3 Hildreth Street Balham London SW12 9RQ For the Respondent MR JULIAN HOSKINS Solicitor Messrs Bevan Ashford 35 Colston Avenue Bristol BS1 4TT MS RECORDER COX QC This is an appeal by Hannah Sam ("the Appellant") against the Decision of an Employment Tribunal at London South, promulgated on 16 th September 1999, to refuse the Appellant's application for a Review of their earlier Decision promulgated on 21 st June 1999. In that earlier decision the Tribunal had refused the Appellant's application for an adjournment of the hearing fixed to determine her complaint of unfair dismissal, which application was made by Mr. Okunowo, a solicitor attending on behalf of the Appellant, who was absent abroad. The Tribunal then proceeded to deal with the complaint, heard evidence from the Respondents and dismissed the claim. Subsequently the Appellant applied for a Review of that Decision. She attended and gave evidence at that Review hearing, at which she was represented by Mr. A.Williams, described by the Tribunal as a "Lay Representative". She was represented before us by Geoffrey Conlin of counsel. Mr. Hoskins of Bevan Ashford, Solicitors, appeared on behalf of the Respondents. The Issues

[2]The issues which arise on this appeal are:(1) whether the Employment Tribunal erred in law in refusing to Review their earlier Decision, in that they misunderstood, alternatively ignored the Appellant's oral evidence as to the necessity for her to be in Ghana for her mother's funeral at the time fixed for the hearing of her complaint in June 1999, the interests of justice required a review and their decision to refuse it was perverse (See grounds 1 and 3 of the Amended Notice of Appeal).

(2) whether we should now admit further documentary evidence, in the form of the "Funeral Invitation" to the Burial, Memorial & Thanksgiving Service for the Appellant's mother, which was not produced to the Employment Tribunal by the Appellant, either at the hearing in June or at the Review hearing which is the subject of this appeal (ground 2 of the Amended Notice). The Factual Background

[3]This case has had a protracted history. The Appellant, who was employed by the Respondents as a midwife for approximately 22 years, presented her Originating Application complaining of unfair dismissal in July 1997 and she has, since then, been represented at various times by a number of different solicitors and by Mr. Williams. Before the hearing fixed in June 1999 there had been seven previous adjournments, four being at the request of the Appellant due, principally, to illness and three being requested by the Respondents because of witness difficulties. On 21st September 1998 the Appellant failed to attend the hearing because of illness but no medical evidence was available at that time and the Tribunal heard and dismissed the claim in her absence. This Decision was reviewed and revoked on 21 st December 1998, the Tribunal on that day being satisfied that the Appellant had been too ill to attend in September. Eventually the matter was fixed for hearing again for three days, from the 15 th to 17 th June 1999.

[4]In their Decision of 21 st June 1999 the Tribunal, in paragraph 6 of their Extended Reasons, recorded the fact that the Appellant wrote to the Tribunal on 28 th May 1999 applying for a postponement of the hearing due to start on 15 th June. They stated that:

"…. In that letter the Applicant stated that her mother had died in Ghana and that, as a result, she would be required to be abroad for a period of more than one month."

They describe how the Chairman then dealing with her application directed the Appellant to supply copies of the airline tickets for her journey. These were faxed to the Tribunal, only on the day before the hearing was due to start, by her solicitor, Mr. Okunowo, and showed her outward flight to Ghana as being on the 13 th June, with the return flight on the 2 nd July. In paragraph 7 of the Reasons they set out the submissions made by the Appellant's solicitor on 15 th June in support of the application to postpone the hearing, as follows:

"….He stated that the Applicant's absence abroad was unavoidable given that her mother had died and that, moreover, the Applicant might be expected to be in too distressed a condition as a result of the death of her mother and the stressful circumstances giving rise to this case to attend the Tribunal."

[5]The Respondents opposed the application for a postponement and, as the Tribunal recorded in paragraph 7:

"….invited the Tribunal to view the Applicant's application somewhat sceptically in view of the previous history of the case."

In paragraph 8 they gave their reasons for refusing the application, stating that:

"….the material before this Tribunal has failed to satisfy us that the Applicant needs to be abroad at this time. More than two weeks have elapsed between the date when the Applicant notified the Tribunal of her mother's death and the date of her outward flight to Ghana. The Applicant has failed to explain why, having delayed travelling to Ghana for that length of time, it is necessary to be abroad at the time of this hearing. We are therefore not satisfied that the death of the Applicant's mother does require her to be absent abroad at this time….."

The Tribunal then proceeded to hear evidence from the Respondents, the Appellant's solicitor having withdrawn, and dismissed the complaint.

[6]Subsequently, the Appellant applied for a Review of that Decision on the grounds that the Decision had been made in her absence, that she could not be expected to attend the hearing on the previous occasion in the circumstances and that the interests of justice required a review. The hearing took place on 1 st September 1999. The Tribunal in their Decision of 16 th September, state in paragraph 4 of the Extended Reasons that:

"….The application for a review therefore covers substantially the same ground as the application for a postponement considered on the previous occasion, but on this occasion the Applicant attended the hearing and gave evidence about the circumstances in which she had been abroad at the date of the last hearing. Consequently, the Tribunal now has before it much fuller information about that matter."

However, having heard evidence, the Tribunal found, at paragraph 13, that:

"…..the position remains as it was when the Tribunal reached its decision on 15 June. We remain unpersuaded that the Applicant needed to be absent from this country at the time of the Tribunal hearing and we are satisfied that the postponement was properly refused."

The Appellant appeals from that Decision.

[7]At the preliminary hearing before this Appeal Tribunal, on 25 th October 2000, the Appellant was given leave to amend her Notice of Appeal to contain only those grounds before us today. She was also ordered to provide a sworn statement setting out all the matters upon which she seeks to rely in support of those grounds. We had her statement before us. In addition, the Chairman was asked to provide his notes of the Appellant's evidence and these were also before us.

[8]When this appeal hearing began there was effectively a joint application by the parties' representatives for us to hear evidence from the Appellant. Mr. Hoskins for the Respondents wished to cross-examine her on the contents of her sworn statement and Mr. Conlin did not oppose that request. We agreed that it would be unhelpful and unfair to the Appellant for us to be asked to draw inferences from what she had said or not said in her statement, without her being given the opportunity to answer questions about it in cross-examination first. The Appellant was therefore tendered for cross-examination and then re-examined by Mr. Conlin before legal submissions were presented on the appeal. The Approach of the Employment Tribunal

[9]It is clear from the facts found and recorded in their Reasons that the Tribunal accepted a great deal of the Appellant's evidence, though describing some of it as:

"….rather vague" (paragraph 9). It was accepted that her mother had died in Ghana on 27 th May 1999 (the official death certificate was produced) and that the Appellant had applied to the Tribunal for an adjournment on the following day. They also appear to have accepted that she could not travel to Ghana immediately because she needed to raise money for the air ticket and to make appropriate arrangements for her four children aged between 12 to 19. The original airline ticket confirmed that she flew out to Ghana on 13 th June. They appear to have accepted that she returned on 5 th July, after changing her original return flight date of 2 nd July. Summarising her evidence about funeral customs in her country and in her culture, they state at paragraph 7 of their Reasons: "….she said that it was necessary for all members of her family to be present at the funeral, and indeed she said that the funeral did not actually take place until 25 June, following the return to Ghana of one of the Applicant's sisters on the previous day. The Applicant also said that, as her mother's eldest daughter and a qualified nurse, it was appropriate for her to deal personally with certain aspects of the funeral arrangements and that it was also desirable for her to return to Ghana as quickly as possible in order to raise money in her home country to defray the cost of the funeral and other expenses."

[10]The Tribunal's key finding is set out in paragraphs 9 and 11 of their Extended Reasons. In paragraph 9, after expressing sympathy for the Appellant in her bereavement, they find that:

"….we are not satisfied that there was anything to prevent the Applicant from postponing her return to Ghana until 18 June, that is the day after the last of the three days scheduled for the original hearing."

In paragraph 11 they state:

"….So far as arrangements in Ghana are concerned, the Applicant has again failed to satisfy us that anything that needed to be done would have been omitted if the Applicant had delayed her return to Ghana until 18 June. We have noted the Applicant's evidence with regard to the special position which she occupied as her mother's eldest daughter and about the need to raise money in Ghana to cover the cost of the funeral. However, we note that the funeral did not take place until after the Applicant's two other sisters had arrived. On the basis of the Applicant's evidence, we are not satisfied that the Applicant could not have postponed her journey to Ghana until after 17 June."

Submissions

[11]These findings give rise to the main ground of appeal pursued by the Appellant, namely that the Tribunal misunderstood or ignored her evidence about the need for her to be in Ghana at the time of the hearing. In her sworn statement and in evidence before us the Appellant stated that, when she received the telephone call from her brother on 28 th May, with the news of her mother's death, she was told that her mother was to be buried on 16 th June and she was asked to come out to Ghana as soon as possible for the funeral arrangements. She said that soon after the call she contacted the Tribunal and spoke to a member of staff, Ms. Rachel Proudlove, telling her of her mother's death and of the date of burial and explaining that she would be unable to attend the hearing due to start on 15 th June. Ms. Proudlove said that she would note this on the file and asked the Appellant to write a letter to the Tribunal saying that she was going to be out of the country. A letter was written immediately and the Tribunal referred to it in their decision of 21 st June. It is dated the 28 th May and refers to the telephone conversation with Ms. Proudlove. It also refers to the fact that she had been unable to contact her solicitor at that stage.

[12]The Appellant said that she had flown out to Ghana on 13 th June and that, on her arrival:

"….arrangements had been made in respect of the obituaries, invitation cards and the order of service for the church and burial had already been sent out indicating that the wake-keeping would be on 15 th June and that the church service and burial would be on the 16 th June" (paragraph 14 of her statement). She described her involvement in the traditional bathing and dressing rights concerning her mother's body and then explained (in paragraphs 16 to 18) that: "16 On 14 th June, after my arrival, my youngest sister, who had gone to America, telephoned and stated that circumstances beyond her control were preventing her from arriving before 16 th June and in time for the burial. She therefore requested an adjournment. This was a very difficult request to deal with. 17 The elders and the rest of the children were asked but with difficulties to grant my sister's request in part. The wake-keeping and church service still went ahead as planned but the burial was delayed until 25 th June so that our youngest sister could see our mother for the last time to say goodbye. This was a last minute unexpected delay and change of plans. 18 …….After the church service on 16 th June 1999 our mum's body was preserved until burial on 25 th June 1999 with our youngest sister being present."

[13]The Appellant also maintained that: "….I stated during the review hearing that the date of burial had been fixed for 16 th June before I left for Ghana – this was ignored by the Chairman. He however stated that I could have waited for the conclusion of the hearing, bearing in mind that burial did not take place until 25 th June 1999. As I have indicated, on my arrival in Ghana and indeed before I set out to Ghana, I had no indication whatsoever that part of the ceremony would not be concluded until 25 th June 1999" (paragraph 20).

[14]Mr. Conlin invites us to find that the Appellant did tell the Tribunal about the 16 th June arrangements at the Review hearing and he submits that either they ignored that evidence or there was an obvious misunderstanding about the situation on their part. If they had properly understood the matter, then they would have accepted that she had to be in Ghana for the 16 th June and would not therefore have been able to postpone her journey until after the final date of the hearing, as they found. Mr. Hoskins invites us to find that she did not tell the Tribunal about the 16 th June and submits that, if she had told them, or her representative had made submissions about it, either at the original hearing on 15 th June or at the Review hearing, they would have noted it and the date would appear in the notes of evidence and the Decision. Conclusions

[15]Having read the Appellant's statement and seen her cross-examined upon it by Mr.Hoskins, we regard her as a witness of truth as to these events. Further, we consider that her evidence about this is supported in several material respects by the Chairman's own notes of her evidence, which are inconsistent with the key findings made by the Tribunal. Noting her answers to questions from the Tribunal, the Chairman has recorded:

"….My sisters arrived late. One a week after me. One the day she (my mother) was buried."

The reference to her sisters arriving "late" suggests that there was in fact an earlier date set for the funeral service and burial since, if the funeral had always been fixed for the 25 th June, they would not have arrived late for it. In addition, the Chairman has noted the Appellant, in evidence-in-chief, referring to the fact that:

"….The burial was on 25 June, I flew to Ghana on 13 June. My mother was buried on 25 June."

The Chairman has noted the word "burial" in respect of the 25 th June and not "funeral", which we consider is consistent with the Appellant's evidence that the funeral service in fact went ahead on the 16 th June and that it was the burial which was postponed until 25 th June, after her sister's late arrival. Indeed we note that the word "funeral" does not appear anywhere in the Chairman's notes.

[16]There is, further, an obvious inconsistency between her evidence, as noted by the Chairman, and the Tribunal's finding in paragraph 7 of their Reasons that:

"…she said that it was necessary for all members of her family to be present at the funeral, and indeed she said that the funeral did not actually take place until 25 June, following the return to Ghana of one of the Applicant's sisters on the previous day."

Importantly the Appellant's evidence, as noted by the Chairman, was that it was the burial which took place on the 25 th June. In addition, the use of the phrase "the funeral did not actually take place until….." is more consistent with there having been an initial arrangement or date, which was subsequently altered, which is of course consistent with the Appellant's evidence.

[17]Mr. Hoskins rightly draws to our attention the letter from the Appellant to the Tribunal dated 28 th May 1999, in which she makes no reference to the 16 th June but refers simply to the need for her to:

"depart for Ghana as quickly as possible"

. However, she also refers in that letter to her telephone call of that day to the Tribunal and her conversation with Rachel Proudlove, a staff member. It was the Appellant's evidence, which we accept, that she had told Ms. Proudlove about the 16 th June and that Ms. Proudlove had said she would make a file note about the matter. The Chairman's notes of evidence record the Appellant's evidence that she had:

"….made a phone call on 28 May. I also told them in view of that circumstance I had to go home."

Unfortunately no mention is made of this phone call in the Tribunal's Decision and unfortunately it does not appear that anyone looked at the Tribunal file at any stage to see what Ms. Proudlove had recorded. We do not therefore regard this point as of assistance.

[18]Having considered this matter carefully we reject the suggestion that the Tribunal heard but chose to ignore the Appellant's evidence about the 16 th June. Indeed Mr. Conlin, quite properly in our view, ultimately did not pursue this submission before us. However we are all of the view that there was, here, a serious misunderstanding about the dates on the part of this Tribunal, which led them into error and to a conclusion we regard as unsustainable. Had they properly understood the matter they could not, properly directing themselves, have reasonably concluded, as they did, that there was nothing to prevent the Applicant from postponing her return to Ghana until after the 17 th June, the final day of the hearing, and that her application for a Review should therefore be refused. Clearly, with the original plan for the funeral service and burial both to be held on the 16 th June and the last minute postponement of the burial, after she had arrived in Ghana, the Appellant could not, reasonably, have been expected to attend a three day hearing due to start on the 15 th June. We therefore consider that this appeal should be allowed.

[19]The second issue before us concerned whether we should now admit fresh documentary evidence from the Appellant, in the form of the "Funeral Invitation" to the burial, memorial and thanksgiving service for the Appellant's mother. Mr. Conlin invited us, firstly, to hold that this evidence was not fresh evidence but merely confirmatory evidence of the Appellant's oral evidence, which had been before the Tribunal below, and to admit it on that basis. However, we were not persuaded by that submission. This was documentary evidence going to an issue in the case, which had not been produced at the Tribunal below, in either June or September, and was now sought to be relied on before us for the first time. It is in our view properly categorised as fresh evidence.

[20]In view of our conclusions on the substantive appeal, however, we propose to deal with this issue shortly. It is common ground between the parties that, in considering whether to exercise our discretion to admit fresh evidence, we should apply the same test as that laid down in Ladd v Marshall

[1954] 3 All ER 745

for the admissibility of fresh evidence in the Court of Appeal. Thus the Appellant must show(1) that the evidence could not have been obtained with reasonable diligence for use at the tribunal;

(2) that not only must it be relevant, but that it would probably have an important influence on the result of the case, even though it need not be decisive; and

(3) that it is apparently credible, though it need not be incontrovertible.

[21]We take the view that the Appellant fails on the first of these limbs and we have not therefore gone on to consider the remaining limbs of the test. Whilst we accept that the document could not have been obtained with reasonable diligence for the hearing on the 15 th June, the position was very different by the time of the Review hearing on 1 st September. We note that the Appellant provided no explanation for the failure to produce it below in her sworn statement before us. When she was asked about it in cross-examination and it was put to her that she could have produced it then she replied simply that she was not asked to. In re-examination she said that the first time she had been asked to produce it was at the preliminary hearing before this Appeal Tribunal and that it was at her home. In the circumstances the Appellant has not satisfied us that the evidence could not have been obtained with reasonable diligence for use at the Tribunal on 1 st September and we therefore have not admitted it in evidence.

[22]We therefore order that this appeal is allowed and that the case is now remitted to a differently constituted Employment Tribunal for a determination of the Appellant's substantive unfair dismissal claim. The complaint is now stale and has a most unfortunate procedural history. In view of the importance to both parties of a decision on the merits in this case as soon as possible, we would expect them to co-operate fully with the Employment Tribunal in ensuring that an early hearing date is obtained and adhered to. September 2001