MS F AHMED v LONDON BOROUGH OF HACKNEY [2001] UKEAT 1221_00_0405

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1221_00_0405

Case No Appeal No. EAT/1221/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS F AHMEDAPPELLANT

LONDON BOROUGH OF HACKNEYRESPONDENT

Before

Mr Justice Charles Mrs J M Matthias Mr G H Wright

Date 4 May 2001

[1]APPEARANCES For the Appellant Mr J LADDIE (of Counsel) Instructed By: Commission for Racial Equality Litigation Dept Elliot House 10-12 Allington Street London SW1E 5EH MR JUSTICE CHARLES : We have before us a preliminary hearing in an appeal which is brought by Ms Ahmed against the London Borough of Hackney. She was the Applicant in proceedings before the Employment Tribunal and the decision, which is the subject of this appeal, is the decision on remedy.

[2]The Notice of Appeal sets out the grounds of appeal in the following terms: At paragraphs 9 and 10 the Tribunal reject the Applicant's allegations that her health has been damaged for reasons based on her evidence and conduct during the merits hearing. The Applicant gave extensive oral evidence as to the damage to her health to the Tribunal in February and October 1998. The decision is thus wrong in law as it is not supported by the weight of the evidence. Those are grounds prepared by a lawyer in the employ of the Commission for Racial Equality. Prior to today's hearing that body and, indeed, that lawyer sent us a letter enclosing affidavits in respect of, as we understood it, the merits hearing.

[3]We confess that when we read that Notice of Appeal we were puzzled as to the nature of the appeal. One point that occurred to us was that perhaps the Appellant was seeking to re-visit criticisms she has advanced as to the conduct of the merits hearing. She appealed against the decision on that hearing. That appeal came before this Tribunal by way of preliminary hearing when it was dismissed. One of the grounds being advanced was bias and procedural irregularity. The letter we received from the Commission for Racial Equality indicated that that matter is being pursued in the Court of Appeal. We wondered whether a ground of appeal was one to be based essentially on the allegations of bias and procedural impropriety at the merits hearing. The other possible point raised in the Notice of Appeal seems to be one simply that the finding was against the weight of the evidence and thus effectively an assertion of perversity.

[4]When the matter came on today the appeal has been argued differently. We were directed (again) in particular to paragraphs 9 and 10 of the Extended Reasons which are in the following terms:

"9 We considered the Applicant's two statements she gave to the Tribunal during the course of the Full Merits Hearing together with her demeanour both then and now. We noted that there was no documentary evidence to support the Applicant in her assertion that she had suffered ill-health as a result of the manner of her dismissal. We noted that in her statement prepared for the hearing in October 1998 she set out her concerns about the manner of her treatment as being a cause of pain and distress and had prevented her moving house. She made no reference to the fact that it caused her any form of ill health. 10 In deciding whether or not to accept the Applicant's assertion that she had suffered ill health the Tribunal considered how the Applicant had behaved immediately after the notification of the dismissal. During that time was the interregnum between the hearings in March 1998 and the hearing in October 1998. In May 1998 the Applicant's representative was taken ill and she took over conduct of her own case. It was clear from the correspondence with the Tribunal that the Applicant was able to communicate and conduct her affairs properly. We did not therefore accept that she was not in a position to be able to apply for a job during this period because of her ill health. We did however accept that having been told she was dismissed it may have taken a little time for her to obtain employment."

[5]As the Extended Reasons show and as is accepted on behalf of the Appellant the evidence before the Employment Tribunal as to the issue whether she suffered ill health as a result of the manner of the dismissal and the long period of suspension she had suffered that was put before the Employment Tribunal was that of the Appellant alone. On that hearing she was represented and, indeed, had the benefit of representation by Counsel who has appeared before us today. That Counsel orally and through a helpful skeleton argument points to the reasoning of the Employment Tribunal in the paragraphs of the Extended Reasons I have read out and in paragraph 5 of his skeleton makes the following points:

"The Tribunal did not accept the Appellant's evidence that she had suffered ill health, on the following grounds: (a) her statement prepared for the original liability hearing did not include any reference to the manner of dismissal causing any health problems; (b) the Appellant did not adduce any documentary evidence to support her case that she had suffered from ill health as a result of the dismissal; (c) within two months of the dismissal, the Appellant had taken over conduct of her Tribunal case and corresponded with the Tribunal; 'it was clear from the correspondence with the Tribunal that the Appellant was able to communicate and conduct her affairs properly'."

[6]Counsel accepts as to point (b) that that was a point that the Employment Tribunal were perfectly entitled to take into account and was a fact that simply existed. His argument relates to points (a) and (c) and one asserting unfairness in the sense of procedural irregularity in that he says these points were not properly put to the Appellant during the course of the hearing to enable her to answer them.

[7]For present purposes we will proceed on the basis that these were not points that were the subject either of cross examination or of questioning by the Employment Tribunal. That assertion is at the heart of the present arguments advanced on behalf of the Appellant. It may be that the other side do not agree with that assertion and, if that is the case, that will have to be looked into. But for present purposes we proceed on the basis that that assertion is correct and accept that it accords with the recollection of Counsel who is representing the Appellant before us today.

[8]In support of his arguments Counsel has referred us to a passage in a case of The County Council of Hereford and Worcester v Neale

[1986] IRLR 168

CA and, in particular, to paragraph 54 of the judgment in that case which, taken as a free-standing paragraph, identifies an issue of procedural fairness, namely that a party needs to know the case he or she has to meet and in this context, on the assumption we have made that if a particular matter strikes an Employment Tribunal as being important they have to consider whether or not they should refer it back to a party if it has not been covered in the course of the hearing.

[9]The assertion is that such matters were not covered in the course of the hearing and I give an example in this context. As to point (a) what we were told was that it was accepted that original statements in the merits hearing did not refer to the Applicant suffering ill-health as a result of the dismissal. But it was pointed out to us that on the merits hearing she was also proposing to call a doctor. We were informed that in the events that happened the doctor was not called as a result of a direction made by the Employment Tribunal. The argument therefore goes that that could provide an explanation as to why the allegation being made on the remedies hearing was not contained in the Applicant's statement for the merits hearing.

[10]At this stage our task is to decide whether this appeal raises points of law that are reasonably arguable. We have concluded that if(i) the points (a) and (c) were not raised during the course of the hearing, and

(ii) were relied on in the Extended Reasons without them being "put back" to the Appellant it is reasonably arguable that there was a lack of procedural fairness and we will therefore give permission for this appeal to proceed on those arguments. We give that permission in respect of those arguments only and I would now like to take the opportunity of discussing with Counsel the directions that should be given.

[11]I now continue with the judgment, having had a discussion with Counsel as to how the matter should go ahead procedurally.

[12]Having identified the grounds of appeal which we think are reasonably arguable on this appeal, which relate points (a) and (c) in the skeleton argument which constitute particulars of the general point that there was procedural unfairness in the way in which the Employment Tribunal reached its decision. What we will do is that we will give leave to the Appellant to amend the Notice of Appeal by striking out the present grounds and substituting therefore the grounds that I have identified in this judgment and which Counsel identified in the skeleton argument. The amended notice of appeal is to be served in 21 days.

[13]We give leave to the Respondents to the appeal to apply to vary or discharge that permission to amend. We leave to the Tribunal that hears any such application to determine the issues whether or not and the extent to which the new grounds are covered by the original grounds. If and to the extent they are then the new grounds would not be out of time.

[14]We would not encourage the Respondents to make an interlocutory application to set aside the leave we have given to amend the notice of appeal because it seems to us such an application could be dealt with on notice at the full hearing. But if they are advised that it is appropriate for them to make such an interlocutory application rather than give notice that they will argue the point at the full hearing that is a matter for them.

[15]At this stage we do not give any directions as to the production of Chairman's Notes. We are conscious that it is a possibility that the Respondents to this appeal may assert that the matters which the Appellant says were not covered during the course of the hearing by way of cross examination and/or by way of questions from the Employment Tribunal were in fact so covered which might prompt an application for Notes of Evidence and for directions as to evidence or statements. It seems to us that we should await such an allegation in the light of the amended notice of appeal and this judgment before identifying what, if any, Notes of Evidence should be produced or further directions given.

[16]Counsel very properly repeated that the grounds of appeal are advanced on his recollection of events. As I have said, we accept that that is his recollection of events and the point he makes that his memory like everyone else's is not perfect. In our view Counsel properly accepted that should it be established that the points relied on were raised adequately during the course of the hearing, or were later "put back" then the basis of the appeal disappears. In those circumstances he said the appeal would be withdrawn. We sound the note of caution that if in those circumstances it is not withdrawn that failure might be visited in costs when the matter comes on for hearing.

[17]We give this appeal Category C and a time estimate of half a day. If there is an interlocutory application dealing with, for example, Notes of Evidence the time estimate can always be re-visited thereon.