MS R SUNLEY v UNIVERSITY OF LEICESTER [2001] UKEAT 1419_99_1503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1419_99_1503Case No Appeal No. EAT/1419/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS R SUNLEYAPPELLANTUNIVERSITY OF LEICESTERRESPONDENT
Before
Mr Justice Hooper Mrs R Chapman Mr P DawsonDate 15 March 2001
[1]APPEARANCES For the Appellant MR D MASSARELLA (of Counsel) Cloisters 1 Pump Court Temple London EC4A 7AA For the Respondent MISS J EADY (of Counsel) Messrs Nelsons Solicitors Provincial House 37 New Walk Leicester LE1 6TU THE HONOURABLE MR JUSTICE HOOPER This Appeal is dismissed for the reasons which we shall now give. This is an Appeal against a decision of the Employment Tribunal sitting at Leicester on 1 September 1999 not to adjourn the hearing of the Appellant's claim that she had been unfairly dismissed by the University of Leicester.[2]At the Preliminary Hearing the Employment Tribunal Appeal, presided over by Burton J, held that the ground raising "issue estoppel" was arguable. Considerable doubts about the other grounds were expressed. Mr Massarella has argued that the Employment Tribunal ought to have granted the adjournment and not to do so was perverse. Secondly, he has argued the "issue estoppel" point. We heard his arguments on the first of those two matters and at the conclusion indicated that we did not find any merit in them. We give our reasons for that conclusion now and our further conclusions that there is no merit in the "issue estoppel" point.[3]Sadly this case has already a very lengthy chronology. The Appellant commenced employment as a part-time lecturer in the Scarman Centre for the Study of Public Order, University of Leicester, in May 1994. In 1995 she commenced a full-time fixed term appointment subject to an 18 month probationary period. In June of 1996 she was told that her probationary period would be extended to September 1997. In June of 1997 she received a letter confirming a second extension of her probationary period to September 1998. On 27 October 1997 she was on sick leave suffering from stress related illnesses, so it is said. On 7 January 1998 she submitted an originating application alleging sex discrimination against the Respondent. In June of 1998 she received a letter confirming that her fixed term post would terminate on 30 September 1998. On 24 July 1998 the Appellant wrote to the Respondent stating that she wished to appeal internally against the decision of the staffing committee confirming that her fixed term post would terminate. In September of 1998 she sent a letter about the progress of that internal appeal. In September of 1998 her employment with the Respondent terminated and in October 1998 she made a claim of unfair dismissal unfair dismissal by letter (see page 12).[4]The letter sets out the broad details of her complaint of unfair dismissal. In October of 1998 she made representations in person to the staffing committee who had made the decision in June. The committee reaffirmed its decision. In November 1998 the Appellant wrote to the Respondent setting out her grounds of appeal under the statutes of the University. In November 1998 the Respondent submitted a notice of appearance in respect of her unfair dismissal claim. Four days later there was a directions hearing at which the chairman of the Employment Tribunal ordered that the Appellant's unfair dismissal and sex discrimination claims be heard separately. We will return to that hearing a little later in this judgement.[5]It was not until 23 December 1998 that the Respondent wrote to Mr Andrew Hochhauser QC enquiring whether he would accept the appointment to hear and determine the Appeal. Complaint has been made by Mr Massarella of the delay. The Appellant obviously feels strongly about this but it does not seem to us that we need to resolve the issue.[6]We turn to 1999. On 3 March 1999 the Employment Tribunal began to hear the originating application alleging sex discrimination. The Appellant was not represented at that hearing. The hearing continued until 19 March when the Employment Tribunal found in favour of the Respondent. On 22 April the decision of the Employment Tribunal in that case was sent to the parties. The Appellant subsequently appealed that decision to the Employment Appeal Tribunal. We are told that the Employment Appeal Tribunal held a Preliminary Hearing in September 1999 and dismissed the appeal. On 10 May 1999 the first of what was to be a 3 day hearing of the unfair dismissal claim was due to be heard in the Employment Tribunal. On the preceding Friday the Appellant sought and obtained an adjournment. The Respondent's witnesses and legal representatives were ready for the case on the Monday.[7]On 11 August 1999 the Employment Tribunal awarded costs against the Appellant in respect of the May adjourned hearing. The unfair dismissal hearing was set down for the 1 September. On that day the Respondent's legal representatives were present as well as the witnesses. On that day and without prior notice the Appellant made an application to adjourn. That was refused by the Employment Tribunal. It is that refusal which is the subject matter of the appeal before us. Unfortunately the Appellant then walked out of the Tribunal and after a gap of half an hour and some further argument the Tribunal continued with the case. On 2 September the Tribunal announced that it had found in favour of the Respondent.[8]Mr Hochhauser has not, we are told, yet heard the internal appeal. The matter came before this court first, on 20 March 2000 ex parte. It was then adjourned to 3 April for a Preliminary Hearing inter partes and it was on that occasion that permission to proceed to a Full Appeal was granted by the Employment Appeal Tribunal.[9]The Tribunal gave extended reasons for their decision that the hearing on 1 September should go ahead. We have been shown some of the documents which were before the Tribunal on that day. We have looked at two letters which are to be found set out at pages 196-199 of the blue bundle prepared for the purposes of this hearing. The first of those two letters written by a Dr Carratero, a Senior House Officer, is dated 25 May. It refers to seeing the Appellant in an outpatient department on 18 May. The letter is addressed to the Appellant's general practitioner. It describes her as " more cheerful, calm and stable. There are no suicidal or homicidal 'ideation' or thoughts of self harm". The letter points out that the Appellant finds it very hard to cope with stresses and finds that they leave her exhausted. Her appetite is good, she has "initial insomnia". Her concentration is improving but her memory remains poor. She is trying to organise her day and to get into a routine. "In general I found that given that" the Employment Tribunal had postponed the unfair dismissal proceedings, "her mood lifted". She remained under stress. She was hyperactive and hyper talkative. She continues to see a psychologist. She was prescribed various medication.[10]The other letter starting at page 198 was written by the general practitioner and was addressed to the solicitor who was then looking after the Appellant's legal affairs. The letter is dated 20 July and refers to a suicide/self harm attempt with an overdose of Diazepam on 31 March 1999. It says that between October 1997 and July 1999 the Appellant has received medical advice on at least 17 occasions. She has received private counselling and has been treated with anti-depressant and anxiolytic drugs. She has had a very distressing time mentally and this has been reflected in her general health. She "has appeared very tearful, low mood, poor sleep and is extremely anxious, unable to concentrate and cope with her everyday life".[11]Those letters we were told were prepared for the purposes of the costs hearing. As Mr Massarella accepts, they were not up to date. The letter of 27/28 July was, however written only five weeks before the 1 September hearing. The letter reads:
"I refer to my attendance with you last week. I am writing at length in a second letter. This letter concerns your unfair dismissal case at the Leicester Employment Tribunal's due to be heard today. I have to advise you that whilst I could assist you at this tribunal unfortunately today is completely impossible for me. There are two reasons for this. The first reason is one that could be resolved and that is the question in time to prepare. Whilst I would have been prepared to sacrifice the bank holiday for this I have a more crucial difficulty. I am sitting myself in Birmingham at the Immigration Appeals on both the 1 st and 2 nd September. It is only fair that my judicial commitments have to take first place. They have been booked for some time. It is not possible for me to cancel these appointments. I am sure you will appreciate this. All I can advise you is that you apply for a adjournment. Whilst tribunals are partly designed parties appearing in person I think there are problems about you representing yourself. You clearly have the intellectual ability to represent yourself but I am concerned having read the Medical Reports about the effect upon your health and I do not think that in your current state of health you could possibly do your self justice. You have my permission to pass this letter on if need be to support your request for an adjournment."
[12]Another document before the Tribunal was a letter from a firm of solicitors, dated the day of the hearing. It appears the solicitors were willing to help the Appellant on a basis which did not involve the Appellant having to pay fees.[13]The final document to which we wish to refer and which was either before the Tribunal or was used by the Appellant as an aide memoire , is a document now to be found at page 208 of the bundle. "I am requesting that the Chairman adjourns this hearing until I am able to be legally represented. I have been advised by Peter Kilty that he is willing to represent me on legal aid for the internal appeal under statutes and external unfair dismissal. He is not however, available to attend the court today or tomorrow, he has also not had the opportunity to read through all the relevant papers or appoint council if that is required. I have a letter from him which explains the situation. I have repeatedly requested that the employment tribunal hearing should be adjourned until the internal proceedings have been completed. This has been refused on several occasions. The internal appeal the only proceeding for which I have had legal representation. It has been made quite clear by Andrew Hochhauser QC that the issues are too complex legally for a lay person to receive a fair and just hearing without legal representation. For the tribunal to insist that the hearing goes ahead today regardless of my lack of legal representation would prevent the hearing being carried out under the basic principles f fairness and justice. I have also been contacted on Saturday by the Chairwoman of the Association of Women Barristers. She has offered her help in any way she is able. I have given a copy of her letter to Peter Kilty so he can advise her of my cases. This may led to council being available to represent me. There is one final issue that I feel should influence the decision to adjourn the hearing. Andrew Hochhauser QC has advised me that he will not hear the Internal Appeal proceedings until the Employment Appeal Tribunal has heard the appeal of the Sex Discrimination case. As the Tribunal and the University lawyers acknowledge overlaps between the cases sufficient to require a reporting restriction order. I do not see how this panel can hear the case when it is possible that the previous decision may be overturned".[14]The Appellant was seeking an adjournment until she was:
"able to be legally represented"
. Reference is made to Mr Kilty being willing to represent her "on legal aid for the internal appeal under statutes" and in the unfair dismissal claim, but that he was not able to attend court today. In the balance of that document she is requesting that the Employment Appeal Tribunal should be adjourned until the internal proceedings have been completed. She says in the letter that this application has been refused on several occasions. In the fourth paragraph it is submitted that should the hearing go ahead regardless of her lack of legal representation, then that would offend the basic principles of fairness and injustice. According to the last paragraph, Mr Hochauser QC has told her that he will not hear the internal appeal proceedings until the conclusion of the proceedings before the Employment Appeal Tribunal in the sex discrimination case. Mr Massarella told us today that the Appellant could not remember whether she had told the Tribunal that the appeal was due to be heard sometime in September 1999.[15]We turn now therefore to the decision. To succeed the Appellant must show that it was perverse. The Tribunal gave the following reasons:
"3 The applicant suffers from stress. However, we consider that the applicant would suffer from stress whether she was represented or not. She stopped work in October 1997 and her employment was terminated in October 1998. We consider this case ought now to be dealt with. The applicant has known for sometime that she was not going to be represented today. Mr Coxon from the Leicester Law Centre had told her at the end of the sex discrimination hearing that he would not be able to assist her but it was not until last week that she consulted Mr Peter Kilty of Kilty Goldfarb. There is not guarantee that he will ultimately represent her. The applicant could have made further and better efforts to obtain representation. There is a considerable history of delays associated with this case and there is no assurance that the Employment Tribunal will not meet similar claims for postponements on any resumed date. The medical history of the applicant suggest that is the matter were adjourned the stress would continue. 4 We have an obligation to be fair to both sides. The Respondent has prepared, not for the first time for this hearing. Witnesses have cleared their diaries and soon The University will be back after the summer vacation and it may not be as easy for the witnesses to find time in their diaries to attend these hearings. This is particularly so bearing in mind the earliest date for a resumed hearing would be January of next year. We do not think it is fair to the Respondent to adjourn the hearing until that time. 5 It seems to us that the stress that the applicant suffers results from having this hearing before her and it will continue until the hearing is dealt with. We therefore think it is in her interest to conclude it. We note that the applicant is a woman of some intelligence and ability and has prepared her case well. She has prepared a statement which runs to 5½ closely typed pages and we consider that she is capable of presenting her case. This is particularly so bearing in mind that the Respondent will go first and the Applicant can ask questions of the Respondent's witnesses assisted by the Tribunal if necessary. The Applicant can give her evidence by simply reading her statement."
[16]Three specific complaints are made of the reasons given. It is said that in the third paragraph in the sentence that refers to Mr Coxon and Mr Kilty there is an implication that the Appellant was somehow at fault for not having consulted Mr Kilty of Kilty Goldfarb until the week before the hearing was due to start. It is submitted on behalf of the Appellant that she did not have the funds to finance legal representation before the Employment Tribunal. The AUT had agreed to find representation for her in the internal appeal proceedings but that she did not have access to legal representation before the Employment Tribunal.[17]We do not take that particular sentence as a criticism of the Appellant, except to the extent that she had left it until so late to consult Mr Kilty. In a subsequent sentence the Tribunal said that the applicant could have made further and better efforts to obtain representation. We have been provided with a document which formed the last page of Miss Eady's skeleton argument which sets out the history of representation in this case. Certainly the Appellant has had help over the long history of this matter. We can see nothing in the findings there made that could possibly be described as perverse.[18]Criticism is also made of the second sentence of paragraph five: it was in the interests of the Appellant to conclude the proceedings. It is said that that is contradicted by the medical evidence and that therefore the Tribunal made an error sufficient to undermine the validity of the decision it was reaching. We can see nothing wrong with that remark.[19]It will be noted that, in paragraph five, the Tribunal relied upon the fact that the Appellant had prepared a statement which runs to five and half closely typed pages. From that they reached the conclusion that she was capable of presenting her case. That statement has not been shown to us and there is no challenge to the finding that she was capable of presenting her case.[20]There was a further point raised by Mr Massarella on behalf of the Appellant. The Employment Tribunal should have adjourned this hearing until the conclusion of the internal appeal. In considering that additional attack upon the decision of the Tribunal we bear in mind that at the directions hearing to which we have already referred (page 8 of the blue bundle), the Tribunal had decided that the hearing of the unfair dismissal case would be listed in May. The Tribunal wrote:
"It is up to the parties to ensure that the internal appeal has been dealt with before that date because it is very unlikely that the Tribunal will postpone that hearing further if the internal procedures have not been completed"
. That direction was not the subject matter of an appeal. The Employment Tribunal had made it clear from as long ago as November 1998 that it proposed to continue with the hearing into the unfair dismissal claim and made it clear that if the parties wished to have the internal appeal heard first, that was a matter for them. Even in November the Tribunal was saying that it was very unlikely that the hearing would be postponed any further. Notwithstanding that, on the Friday preceding the hearing scheduled to take place on 10 May and contrary to the wishes of the Respondent, the matter was adjourned until September.[21]We turn now to the point which we have described as the "issue estoppel point". The substance of the Appellant's case is this. The Respondent University takes the view that the decision of the Employment Tribunal in the unfair dismissal case is binding upon Mr Hochhauser. That may or may not be right and that will be a matter for Mr Hochhauser to decide. It is submitted that the Tribunal ought to have taken into account the possible binding nature of any decision which the Tribunal was to make in deciding whether or not to grant an adjournment. Miss Eady, appears to raise that for the first time after the Tribunal had decided not to adjourn the case and in the absence of the Appellant who, by now, had left the building. In seeking to persuade the Tribunal to determine the case Miss Eady said in words to the effect:
"Your findings are binding"
. That is only a note of what was said and no doubt it was not said quite as succinctly as that.[22]We have been shown the notes of the hearing leading up to the moment when the Appellant walked out. They will be found at page 203 of the bundle. According to those notes, in response to a request from the chairman as to why it was unfair to proceed with the case, the Appellant requested an adjournment to allow Kilty Goldfarb to represent her for the internal appeal and the Employment Tribunal. There is a reference to Mr Hochhauser, to the Employment Appeal Tribunal appeal and to the medical reports submitted for costs. We have already made reference to those medical reports. She said that she had serious doubts as to whether she could represent herself and that she had been under medication at the last hearing. The notes record that she was: " begging" the panel to give an opportunity for Kilty Goldfarb to represent her. The notes also show that a solicitor had been paid £1000 by the AUT to help with the internal appeal but the money had run out and she was waiting to hear if the AUT would reverse their decision not to fund the matter further. She was relying on incapacity benefit, she was selling her house, she was moving to a council house with a view to going back to work. We set that out in some detail because what is missing both from these notes and from the document at page 208 to which we have made reference, is any suggestion that the Tribunal should take into account that the decision that they might make would be binding. One has to bear in mind that at this stage neither the Tribunal nor the Respondents knew that the Appellant would walk out. She had been present for the whole eighteen days at the sex discrimination hearing. No doubt it was thought that if the adjournment was not granted Miss Sunley would, as she had done before, represent herself on the unfair dismissal claim.[23]Mr Massarella submitted to us that as a lay person, the Appellant would not know about such issues as res judicata, or issue estoppel, the application of which might have the consequence of binding Mr Hochhauser should she be found not to have been unfairly dismissed. However it turned out on examination of the correspondence that the Appellant certainly had the material before her to make it clear that this was the University's position and had been so for a very long time. We shall refer briefly to the documents which support that proposition. For example at page 62 of the bundle, will be found the second page of a letter to Mr Hochhauser from the University in which the last sentence of the penultimate paragraph indicates that, if issues are disposed of by the Employment Tribunal, then those issues will not be considered under the internal appeal. That letter was copied to the Appellant by Mr Hochhauser as can be seen at page 63. Furthermore in a letter dated 30 April Mr Hochhauser himself asked this question of the University solicitors:
"Is it suggested that I am to be bound by any finding of fact made by the Employment Tribunal?"
[24]In a letter dated 28 April to Mr Hochhauser the Appellant said that she was very keen to see an application to adjourn the Employment Tribunal pending the outcome of the internal appeal:
"Without an internal appeal being carried out I do not feel that I will receive a full and fair hearing at any Employment Tribunal. I have been very ill following the recent Employment Tribunal case. I am only now recovering sufficiently to engage in these matters again."
Probably the most important of the documents in relation to this matter can be found at pages 74-75 of the bundle. That is a letter dated 6 May from the Respondents to Mr Hochhauser, copied to the Appellant. In the letter the Respondent sets out his reasons why it wishes to have the Employment Tribunal decide the matter before the matter is heard by Mr Hockhauser. It is made clear that the University will be submitting:
"That the findings made by the Tribunal would be binding on the appeal under the Statutes leaving only those issues not covered by the Tribunal for determination"
. That is setting out in the clearest and simplest terms that the University proposes to rely on the argument which we have called "issue estoppel". The story does not end there because there was a conference by telephone between the University's solicitor, Mr Hochhauser and the Appellant. During that telephone call Mr Hochhauser specifically raised the point whether or not he would be bound by the decision of the Employment Tribunal, he said that:
"He could see that there was strong argument that this was in fact the case"
. At page 103 will be found a letter sent to Mr Hochhauser on 17 June 1999. That letter again makes it very clear, particularly at page 104 under paragraph (b), that the University would be relying upon the doctrine of res judicata or "issue estoppel". It cannot be suggested against the background of the other letters that the Appellant would have been confused by the use of that more technical language.[25]Finally at page 142 there is a letter to Mr Hochhauser dealing with the terms of reference and again that letter shows that it was the University's view that it may be necessary to revisit the terms of reference in the light of the decision of the Employment Tribunal in relation to Miss Sunley's claims. The fact the Miss Sunley did not raise this issue before the Tribunal must be a matter for her. She knew about it and given her intellectual abilities it appears to us that it was for her to raise the issue before the Tribunal.[26]Mr Massarella further submits that that the Tribunal knowing as it did that there was going to be an internal appeal should of its own motion have taken into account: "in deciding whether to adjourn or not there is a possibility that any determination which the Tribunal might make might be binding on a future internal appeal and might indeed even block the internal appeal altogether".[27]That was the second way that Mr Massarella suggested the Tribunal should approach the matter. In his first formulation he said, the Tribunal should have taken into account: "the possible impact" upon the pursuit of an internal appeal if an adjournment was declined. Again we remind ourselves that at this stage is was not known that the Appellant would in fact absent herself from the proceedings. We asked Mr Massarella for authority for the proposition that the Tribunal should have themselves thought about this point. He was unable to provide us any. We see no merit in this submission.[28]Thirdly, it was said that it was for Miss Eady, as a member of the Bar, to draw the matter to the attention of the Tribunal. Mr Massarella was not necessarily suggesting that other representatives before a Tribunal have that obligation but that Miss Eady being a member of the Bar was in a different position. It was suggested by Mr Massarella that her duty was to tell the Employment Tribunal that any decision made by it might be binding in any internal appeal. Mr Massarella suggested she had a duty to be fair to an unrepresented Appellant. Mr Massarella did not support the proposition that there was such a duty upon Counsel. Miss Eady was surprised by the suggestion that she was under such a duty. At one point it was being suggested that Miss Eady ought to also have told the Tribunal about the chronological history of the matter and in particular explain to the Tribunal that there was a desire on the part of the University that the Employment Tribunal go first for the reasons set out in the letter at pages 74-75 to which we have already referred. Mr Massarella on being pressed did not pursue that point. We take the view that Mr Massarella has not shown that there was any duty upon Miss Eady in the circumstances which we outlined, and in those circumstances this appeal fails.