MISS L D MCDADE v JULIAN CRITCHLOW & OTHERS [2001] UKEAT 1161_00_2901

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1161_00_2901Case No Appeal No. EAT/1161/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS L D MCDADEAPPELLANTJULIAN CRITCHLOW & OTHERSRESPONDENT
Before
Mr Justice Charles Miss C Holroyd Mr R SandersonDate 29 January 2001
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE CHARLES : We have before us a preliminary hearing in respect of an appeal brought by Miss McDade against a decision of an Employment Tribunal sitting at London (North) on 7 May 1999. The Extended Reasons for that decision were sent to the parties on 23 August 1999. Part of the delay was caused by the fact that the decision was reserved and the Employment Tribunal met in Chambers after the hearing to discuss the case. The relevant part of the decision is in paragraphs (1) and (2) at the beginning of the Extended Reasons and are as follows:
"(1) The Originating Application was not submitted within the 3 month time limit in accordance with section 111 of the Employment Rights Act 1996 in respect of the claim for unfair dismissal and Article 8 [typing error for Article 7] of the Industrial Tribunal Extension of Jurisdiction Order 1994 in respect of the wrongful dismissal claim. (2) It was reasonably practicable for the Applicant to submit her claim for unfair dismissal in time and the Tribunal therefore has no jurisdiction to hear the claim"
[2]It is apparent from that decision that in her Originating Application the Applicant made claims for unfair and wrongful dismissal. She also made claims under the Sex Discrimination Act. The hearing before the Employment Tribunal was to deal with the time or limitation periods in those Acts. In summary the Employment Tribunal found that her claims for unfair and wrongful dismissal were out of time and that the trigger for extension of the time limit was not met and, therefore, they had no jurisdiction to hear those claims. In contrast they determined that either the Sex Discrimination Act claims were in time or that they would, so far as was necessary, extend time for the Applicant to bring those claims.[3]The appeal is therefore against the decision that the claims for unfair wrongful dismissal are out of time and will not be heard.[4]The case has a fairly long history which I will summarise in a moment by reference to a chronology. We have already dealt with two preliminary points raised by Miss McDade on this preliminary hearing. She raises a third one which has also been foreshadowed in correspondence. It is that she has applied for an adjournment of the hearing. I am now giving judgment in respect of that application. I say now, so Miss McDade will know it, that we are going to refuse that application. In doing so I indicate to her now that she is, of course, at liberty to remain to present her argument on the preliminary hearing but if she does not do so our present proposal is to deal with the matter on paper. I now turn to deal with the chronology.(1) Between 1991 and 1995 Miss McDade was employed by a firm of Solicitors called Masons. In October 1995 she commenced employment with a firm of Solicitors called S.J. Berwin (I shall refer to as Berwins). In October 1998 she sent an internal e:mail commenting on an entry, or a proposed entry, relating to partners in that firm in a well known directory called The Chambers Directory.(2) On 22 October 1998 she received a letter from Berwins concerning that e:mail and it seems that that letter led to, or was part of, an internal disciplinary process.(3) On 17 November 1998 she was told to leave and has not been paid since that date. I use the expression "told to leave" because there is an issue as to whether or not that was the dismissal.(4) On 17 December 1998 an internal appeal was heard. Miss McDade was notified of the result of that appeal which was that it failed. She received that letter on 29 December 1998.(5) If the effective date of termination of her employment was 17 November 1998 the three month limitation period for issuing her claim expired on 16 February 1999. Miss McDade's Originating Application was issued the next day, on 17 February 1999. An Answer was put in on 15 March 1999 by both Respondents. The other Respondent is a Mr Critchlow and it was in respect of his entry in the Chambers Directory that Miss McDade sent her internal e:mail.(6) The hearing took place before the Employment Tribunal on 7 May 1999 and they also met in Chambers on 27 July 1999. As I have said earlier, the Extended Reasons were sent to the parties on 23 August 1999.(7) On 2 September 1999 Miss McDade wrote to the Employment Tribunal seeking a review of their decision. That review was refused and the Extended Reasons in respect of that refusal were sent to the parties on 28 September 1999.(8) On 29 September 1999 Miss McDade appealed but sent her appeal, not to this Tribunal, but to the Employment Tribunal. Some time thereafter (and the date sequence in respect of this is dealt with in a judgment of the President (Lindsay J) relating to extension of time dated 26 July 2000) Miss McDade made an appeal to this Tribunal and an extension of time for appealing to this Tribunal was refused by the Registrar on 10 April 2000. Miss McDade appealed against that decision and she was successful on that appeal, the President giving an extension of time for appealing on 26 July 2000.[5]Miss McDade relies on the terms of the order made on 26 July 2000 and in her written submissions has relied on things said by the President during the course of the hearing and, as I understand it, in his judgment. She says, and rightly says, that the order of 27 July says this:
"UPON HEARING Miss L McDade the Applicant in person and Mr T Pullen of Counsel on behalf of the Respondents AND UPON the Appellants Appeal pursuant to Rule 21 of the Employment Appeal Tribunal Rules 1993 from the Order of the Registrar dated the 10 th day of April 2000 IT IS ORDERED that the Appeal be allowed and that the time for entering a Notice of Appeal be extended to 30 th November 1999 in accordance with the Judgment of the Employment Appeal Tribunal. IT IS DIRECTED that any application for leave to appeal should be made direct to the Court of Appeal within 14 days of the date the Judgment is sent to the parties."
[6]Miss McDade reads the substantive part of that Order as being an Order that the appeal should proceed. Literally it does not say that but it does have that effect. Literally what it says is that the appeal be allowed (that is her appeal against the refusal to extend time) and that the time for entering a Notice of Appeal be extended in accordance with the judgment of the Employment Appeal Tribunal.[7]Additionally what Miss McDade says is that that Order (and/or what was said in the President's judgment, or alternatively during the course of the hearing) has the effect that her appeal should proceed on an inter partes basis and thus that there should be a full hearing.[8]Her submission to us today is, therefore that we should adjourn the preliminary hearing in the sense that we should simply direct that there should be a full hearing without dealing with this appeal by way of preliminary hearing.[9]To complete the chronology I should add that: (1) by letters dated 20 October 2000 and 25 January 2001, written on behalf of the Registrar, it has been made clear to Miss McDade that this is to be a preliminary hearing. The letter dated 20 October 2000 is in the following terms:
"I refer to the above matter and your letter of the 27 th day of September 2000 and the 16 th day of October 2000. It was referred to The Honourable Mr Justice Lindsay (President) who has directed me to write to you as follows, 'I direct this to be an ex-parte preliminary hearing in the usual way. Notices of Appeal go directly to a full inter-partes only when the Employment Appeal Tribunal has already detected a reasonably arguable point of law or a serious question of wide public importance, which is not here the case. Nothing in my decision of the 26 th day of July 2000 suggests that it had been detected, accordingly, this must be the usual ex-parte preliminary hearing'. The only correspondence that I have received from the Respondent since your hearing on the 26 th day of July 2000 discusses the respondents view on whether or not this matter should be set down for preliminary hearing or full inter partes hearing (copy attached)." (2) Miss McDade was not put off by that letter and later repeated her assertion that the matter should not proceed in accordance with the normal procedure of an ex parte preliminary hearing and continued to seek an adjournment. The letter of 25 January 2001 is in the following terms: "
I refer to the above matter and your letter of the 24 th day of January 2001. I regret to inform you that your request for an adjournment is refused. This matter has been set down for an ex-parte Preliminary Hearing, the Order of the 26 th day of July 2000 (annexed hereto) makes no mention of the type of hearing that is determined by the Registrar. Upon further correspondence from you dated the 27 th day of September 2000 and the 16 th day of October 2000 which were referred to the President, he directed by letter dated the 20 th day of October 2000 that this matter remained an ex-parte preliminary hearing. The Registrar has asked me to point out that there is no doubt at all that you have been and will be treated fairly and your Human Rights observed. If you feel that there is a doubt then you should raise this matter as a preliminary point at the ex-parte preliminary hearing on Monday the 29 th day of January 2001."[10]That is what Miss McDade has done. She started her submissions by reference to the terms of the Order of 26 July, saying that it had directed that there should be a full inter-partes hearing of the appeal. It does not so direct.[11]Additionally the President has made abundantly clear in his direction recorded on 20 October that, in his view, the matter should proceed by way of preliminary hearing, that on 26 July he did not direct to the contrary and, by the direction included in that letter, directed that the matter should proceed, pursuant to the normal preliminary hearing procedure.[12]Another point raised by Miss McDade before us this morning was that she had been told by somebody in the office here that the matter was to go by preliminary hearing because she did not have a reasonably arguable point of law. From that she made the submission that this Tribunal have closed their minds to the issue whether or not her appeal raises a reasonably arguable point of law.[13]We have not so closed our minds and in those circumstances it matters not whether Miss McDade was given the information she alleges by a member of this Tribunal's staff.[14]However, we add that we do not accept that she was so informed by a member of this Tribunal's staff. They are all very well aware of the procedure on preliminary hearings, namely that it is for the Appellant to come and explain the grounds of the appeal and to demonstrate a reasonably arguable point of law. We also note that the point is not raised in correspondence that we have seen.[15]However, I repeat, in any event, if Miss McDade took away from a conversation with a member of the staff here some misunderstanding it matters not because we have not closed our minds to the issue.[16]Additionally, by way of oral submission, Miss McDade made general allegations of corruption. Again, in our judgment, we do not see how this affects the point whether or not there should be an adjournment of this preliminary hearing.[17]I turn now to deal more generally with the preliminary hearing procedure. This procedure is a standard one adopted by this Tribunal. It is dealt with in this Tribunal's Practice Direction of March 1996 (see paragraph 14 thereof which can be found at paragraph 5074 of the most up-to-date Butterworths Employment Law Handbook) and also the guidance notes issued by this Tribunal (which can be found at paragraph 5090 of that Butterworths). But I comment that my understanding is that a leaflet is sent out which does not exactly follow those guidance notes and that therefore there may be some more up-to-date guidance notes.[18]The Practice Direction and the Guidance Notes make it abundantly clear that, the practice of the Tribunal is that preliminary hearings are heard on an ex-parte basis. As the President indicated in the direction recorded in his letter of 20 October 2000 there is presently a practice that, in some cases where it is obvious on paper that a reasonably arguable point of law has been raised or there is a point of general public importance, an appeal is listed for full hearing without a preliminary hearing. That practice is that a judge sitting at this Tribunal considers appeals on paper to see if any should go straight to a full hearing for those reasons.[19]The Practice Direction and Guidance Notes also make it abundantly clear that the issue for this Tribunal on an ex parte preliminary hearing is to consider and determine whether the appeal raises a point of law that is reasonably arguable. The jurisdiction of this Tribunal is limited to dealing with errors of law. If the conclusion on the preliminary hearing is that the appeal does not raise a point of law that is reasonably arguable the appeal is dismissed. However, if in the absence of the Respondent to the appeal an Appellant can demonstrate that the appeal raises a point of law that is reasonably arguable, the appeal is set down for a full hearing. One of the reasons for this procedure is to save costs.[20]First, if the appeal does not raise a reasonably arguable point a Respondent is saved the costs of attending and in this context it is important to remember that this Tribunal has a limited power to order costs and, therefore, the position of a Respondent to an appeal before this Tribunal is not the same as a party in other courts where costs generally follow the event.[21]Second, it is often the case that on a preliminary hearing the grounds of appeal are reduced or defined with greater precision, with a consequent reduction in the time taken on the full hearing and therefore both of time in this Tribunal and of costs.[22]Naturally, a disadvantage of the procedure for an appellant is that he or she has to attend twice and this could increase the Appellant's costs. However, in setting up and applying the procedure, the conclusion has been reached that this disadvantage is outweighed by the advantages and benefits the system gives, both in respect of the appeal in question and also, importantly and more generally, to the public because of the time it saves for this Tribunal. This time saving has the result that other litigants can get their appeals heard more quickly than would otherwise be the case.[23]By seeking the adjournment what the Appellant Ms McDade is seeking to do is to avoid this standard procedure. I have already indicated that she relies on the terms of the Order dated 26 July and matters stated by the President during the course of that hearing and indicated that we do not accept those arguments. However, I should also mention paragraph 21 of the President's judgment on that occasion which is in the following terms:
"21 I have so far barely considered the merits of the prospect of appeal. Such brief consideration as is usually given on such occasions to the merits of the appeal do not convince me that here there is an appeal with any great weight of prospect of success and, as I mentioned earlier in the course of the chronology, the 17 November 1998 was the date which Miss McDade herself specified as the date of dismissal. But I am not truly in a position to be able to evaluate whether, in the particular circumstances of this case, an argument that the dismissal truly took place later, at a time after an appeal had been concluded, has any real prospect or not. I am troubled by the slow way in which the Employment Appeal Tribunal dealt with the matter, as I have mentioned, and I have already referred to the difficulty in taking a stringent line on the passage of time, given the Respondents' Solicitors' own delay from about 15 February 2000 until 22 March 2000."
[24]In our judgment that paragraph makes it quite clear that the President was not taking the exceptional course of directing that this appeal should proceed immediately to a full hearing and it also makes it quite clear that he was not concluding that it raised a reasonably arguable point of law. That was a matter which fell to be considered according to the normal practice on a preliminary hearing. In short, that paragraph makes it quite clear that the President was concluding that the standard procedure was to apply. If there had been any doubt about that it was dispelled by his direction contained in the letter of 20 October 2000.[25]As I have indicated earlier in this judgment, we have concluded that we should refuse the application for an adjournment.[26]In our judgment the preliminary hearing procedure does not prejudice the Appellant. All it does is to make it incumbent on her, in the absence of contrary argument, to demonstrate that her appeal raises a point of law that is reasonably arguable. In our judgment it is clear from that that her Human Rights are in no way affected nor is her right to a fair hearing or a fair trial.[27]In our judgment her assertions that the application of the standard preliminary hearing procedure to this appeal is some part of a conspiracy or acts that are corrupt is fanciful. It is no more and no less than a standard application of a standard procedure. In our judgment this is a case where the standard preliminary hearing procedure should be applied having regard in particular to the public interest in its general application but also to the point that if the Appellant is unable, in the absence of contrary argument, to demonstrate that this appeal raises points of law that are reasonably arguable, it should be dismissed without attendance by the Respondents. Accordingly the application for an adjournment is refused and we propose to deal with the preliminary hearing either in the presence of Miss McDade or in her absence.