MS N SIVANANDAN v LONDON BOROUGH OF ENFIELD MR S BELL & OTHERS [2001] UKEAT 431_01_2607

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 431_01_2607

Case No Appeal No. EAT/431/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS N SIVANANDANAPPELLANT

LONDON BOROUGH OF ENFIELD MR S BELL & OTHERSRESPONDENT

Before

Mr Justice Lindsay

Date 26 July 2001

[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : This is the last of the judgments which we deliver in relation to the hearing at the Employment Appeal Tribunal on the 11th July. This concerns the Notice of Appeal of Ms Sivanandan of the 17th April this year as to a Decision sent to the parties on the 8th March of this year after an application by Ms Sivanandan for a review had been considered in Chambers by the Chairman alone on the 1st March of this year. As we have indicated in earlier judgments in this matter, for a fuller understanding of the case one needs to have some familiarity with the long judgment which we delivered on the 25th April of this year and the judgments which we have delivered earlier today.

[2]On the 22nd September of last year a decision of a 3-person panel at the Employment Tribunal striking out Ms Sivanandan's IT1 was sent to the parties. On the 2nd October of last year Ms Sivanandan wrote to the Tribunal seeking a review, as follows:- "I write to request a review of the Tribunal's written decision dated 22nd September 2000 which struck out my claim, in my absence, on the 6th September 2000. The grounds for such a review are as follows: 1. The decision was made in my absence, 2. New evidence as to my health has become available since the conclusion of the hearing, 3. The interests of justice requires such a review."

[3]We have already sent the appeal against the decision of the 22nd September to a Full Hearing so that, to some extent, if the Employment Tribunal erred in law in relation to the decision made by it on the 22nd September, Ms Sivanandan should succeed on her appeal. To that extent the Preliminary Hearing now before us as to the review decision has not got the significance it might have had but it is, of course, still appropriate that we should go into the case.

[4]At one point before the conclusion of the review, Ms Sivanandan urged that she did not consider that the panel who had decided against her on the 22nd September was fit to consider the review. However, later she said:- "I see no reason why the Chair who made the original decision should not hear the review, unless she accepts that there may have been bias or misconduct in the conduct of the proceedings on the 6th September 00 when my case was struck out." The first Respondent, Enfield, was happy for the Chairman to make the preliminary decision on the review application on consideration of papers alone. The Chairman Ms Gay had raised on the 30th January 2001 the question:- "Are all the parties content for the Chairman to make the preliminary decision (i.e. as to whether there is no reasonable prospects of success) on consideration of the papers alone?" That question was at first answered, incorrectly, by Ms Sivanandan arguing that the proper question for the Chairman was not whether there were no reasonable prospects of success but whether she, Ms Sivanandan, had made out a prima facie case to justify holding a review. Nor had Ms Sivanandan's later letter of the 15th February of this year, whilst purporting to answer the letter of the 30th January, given an answer to the Chairman's question as to whether she was content that the matter should be dealt with, at any rate in the first place, on paper. Hardly surprisingly, Ms Sivanandan's view that she saw no reason why the Chair who made the original decision should not hear the review led to the matter being dealt with on paper. That is, after all, quite the most usual way in which, at any rate in the first place, applications for a review are dealt with.

[5]Accordingly, on the 1st March 2001 in Chambers Ms V.K. Gay, sitting alone, decided:- "The decision of the Chairman is that the application for a review be not allowed to proceed to a Full Hearing because it has no reasonable prospect of success."

[6]On the 17th April of this year Ms Sivanandan lodged a Notice of Appeal. She does sometimes do herself no service because from time-to-time she gives ammunition to those who would seek to argue that she is liable to treat as biased and racist any decision that is given against her. A good example of this possibility is her reaction to the Chairman's inquiry that was made to all parties on the 30th January of this year. The Employment Tribunal's letter of the 30th January, part of which we have already cited, began:- "I write on the instructions of the Chairman, Ms V. Gay, in connection with preparations currently being made for a hearing in respect of whether there are "no reasonable prospects of success" for Ms Sivanandan's application for a review of the decision striking out her claims. It is acknowledged that such decisions are usually made after consideration of the papers alone, but, in view of that fact that Ms Sivanandan wanted to rely on fresh evidence, the Chairman had determined that the parties should have the opportunity of an oral hearing in front of her (this being a matter for consideration by a Chairman alone). Various matters have now occurred which have caused the Chairman to wish to consult the parties further. 1. The Chairman has recently received from the EAT copies of affidavits sworn by Ms Sivanandan and Mr Gordon (which have presumably also been copied to the Respondents). The affidavits make numerous allegations of bias and race discrimination, amongst other matters. In the circumstances the Chairman instructs me to ask whether the parties consider it appropriate for the consideration of the review application to continue before her, or whether they urge that some other course should be adopted (as permitted by Rule 11 (5) of Schedule 1 to the Employment Tribunals (Constitution and Procedure) Regulations 1993)." It was in that context that the Employment Tribunal raised the question, which we have already indicated, as to whether all parties were content for the Chairman to make the preliminary decision i.e. as to whether there were no reasonable prospects of success, on consideration of the papers alone? In her Notice of Appeal this, as it seems to us, sensible request put to all parties gets an aggressively hostile response from Ms Sivanandan as follows:- "She asks whether, "all the parties are content for the Chairman to make the preliminary decision on consideration of the papers?", (page 2, letter dated 30th January 2001). I believe that this is victimisation as a direct result to my complaints of race discrimination and it is perverse because before the decision was made to strike out my claim I had made clear complaints of bias and discrimination against this Chair and Tribunal. The Tribunal had earlier claimed that it was able "to put completely out of our minds" my complaints of bias and discrimination before they struck out my claim and yet she is not able to put them out of her mind now because she asks whether she should be discharged from the review decision." Later, providing further ground for the fear which we have expressed in an earlier judgment that this case is in danger of becoming unjusticiable, Ms Sivanandan asserts that there is here a continuing pattern of "institutional racism". For our part, we see the better course is to examine the Chairman's reasoning in the light of the power to review. The power is given by Rule 11 of the Employment Tribunals as follows:- "(1) Subject to the provisions 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's staff;

(b) A party did not receive notice of the proceedings leading to the decision;

(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." Here no relevant argument is addressed under (a) and (b) above. Rule 11 (3) provides:- "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 14th day after the date on which the decision was sent to the parties, it has sent 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." There is no corresponding provision for the case where the review is on a party's application. Rule (4) provides, so far as material, that an application made for a review "must be in writing stating the grounds in full". Rule (5) provides:- "(5) An application for the purposes of paragraph (1) may be refused by the President or by the Chairman of the Tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success." There is no provision such as Ms Sivanandan believed to be the case, namely that upon some prima facie case for a review being shown, the Chairman had to send it to a full Tribunal.

[7]Against that background the Chairman was required to examine the 3 grounds advanced in the letter of the 2nd October which had to be taken to be Ms Sivanandan's attempt at "stating the grounds in full". The 3 grounds were set out by the Chairman in paragraph 1 of her Extended Reasons. The Chairman's account of the reasons accorded with the reasons as Ms Sivanandan had advanced them to be. The 3 grounds are related and the Chairman cannot be accused of error when she says in her paragraph 6:- "The nub of the application for review is that the Appellant was so unwell that she was unable on medical advice to remain in the Tribunal on the 6th September 2000 and therefore:-(i) The decision to strike out her claims was made in her absence, so that relevant oral evidence concerning in particular an apology to the clerk on the morning of the 6th September was not given, and/or

(ii) Further evidence concerning her health/unfitness to conduct a long hearing has subsequently become available, and/or

(iii) By reason of these matters or otherwise the interests of justice require a review. We will take these matters in a different order."

[8]It is true that by the time of the review better evidence than had been made available on the 6th September was available about the incident in which, as is not disputed, Ms Sivanandan reduced a female Employment Tribunal clerk to tears by shouting at her. The question of whether Ms Sivanandan had apologised was better dealt with in evidence produced after the 6th September, but the Chairman had that in mind; she said:- "In her intended witness statement, the Applicant asserts that she apologised to the clerk after the incident in the corridor. The failure to apologise which the Tribunal recorded (based on the account of the clerk and the one given through the Respondent's Counsel) was a small part of the whole scheme of events that led to the Tribunal's decision. On its own there is no reasonable prospect that had an apology been given, the decision to strike out would have been different." The real demerit on Ms Sivanandan's part was her reducing the clerk to tears by boorish behaviour. One can see the force of the Chairman's view that the issue of an apology or not was very subsidiary. There is no reason not to accept the Chairman's assertion that the issue of apology or not was not in any way decisive and we see no error of law in this part of the case.

[9]As for the interests of justice within Rule 11 (1) (e) , the Chairman concluded:- "There are no special or exceptional circumstances why the evidence now sought to be presented could found a review under this head and no other basis which has any reasonable prospect of success." Leaving aside the medical side of Ms Sivanandan's case and her related absence at points on the 6th September 2000, despite some 8 pages of close-typing in her Notice of Appeal we have not have been able to discern any arguable error of law therein. For example, Ms Sivanandan pleads that the Chairman should have taken account of a suggested new willingness on the part of the Race Discrimination Unit ("RDU") of the Lambeth Law Centre to come to her aid with professional legal assistance. However, there is, even now, no evidence that they would have come to assist her if the hearing on and from the 5th September were to be adjourned or indeed that they would assist her on any other contingency or other basis. Ms Sivanandan tells us what she understood from conversations with the RDU but there is, as it seems to us, nothing firm at any stage, even now, as to what assistance they would be prepared to give to her or as to the basis on which it may be given.

[10]Again, in her Notice of Appeal, Ms Sivanandan says:- "The Chair said that I did not inform the Tribunal on the 6th September that I actually had a migraine at the time, but this is now stated in my witness statement and corroborated by Mr Gordon in his witness statement. (If I failed to tell the Tribunal on the 6th September it was only because I was so stressed and could not cope with even the simplest of submissions)." Given that Ms Sivanandan was on that very day capable of reducing a clerk to tears, the argument that she could not even tell the Employment Tribunal that she did have a migraine is one that we would find very difficult to accept given, also, that a short adjournment was afforded to her and that in that period she was able to make one or more telephone calls to others on subjects relating to her health. Thus far we have been able to find no arguable error of law in the Notice of Appeal. However, we have so far left aside the medical side of things and the related topic of her absence on the 6th September.

[11]As to the medical side of things, the Chairman said:- "The Chairman is satisfied that the medical evidence now produced would not be capable of persuading the Tribunal that the Applicant was so unwell that she had to leave because:- (i) The GP's letter dated 8th September 2000 and received on the same day by the Tribunal's offices refers to a visit by the Applicant to the surgery on the 7th September. It is quite clear that everything which is set out concerning the Applicant's state of health on 5th and 6th September is based upon what the Applicant told the GP (rather than upon the facts which the GP had herself observed). Unlike the GP, the Tribunal had seen the Applicant on both days and heard from her at some length on both days. On the morning of the 6th September the Applicant asked to address us on her state of health and, as recorded in the decision, was permitted to do so. She spoke for some 10 minutes without:- (a) mentioning that she was suffering from migraine or (b) asking the Tribunal to adjourn because she was suffering from migraine and needed to recover. This was despite the fact that we had accepted in our reasons in support of the decision refusing to postpone the hearing, given orally the day before and sent to the parties in writing on the 13th September, that the Applicant was someone who was prone to suffer migraine and would not be fit to conduct her case whilst suffering a migraine. We had then specifically said, in the Applicant's presence, that if an adjournment were required for health reasons it should be requested and would be considered immediately. The knowledge and thus the evidence that the Applicant was suffering from a migraine (if she were indeed suffering from a migraine), lay entirely with her and nothing prevented her from telling us on the 6th September and requesting an appropriate adjournment." A little later, and relating to other medical evidence which was available by the time of the review but not available on the 6th September, the Chairman said:- "(ii) In respect of the evidence from Mirko Cirkovic, primary care psychologist, dated 23rd October 2000, this is purely an historic account in so far as it is specific to the Applicant, since it relates to sessions from the 19th March 1998 to the 7th June 1999. He had not seen the Applicant for 15 months by the date of the hearing and 16 months at the date of the report. This evidence could have been available for the Tribunal on the 5th or 6th September, had the Applicant wished to provide it." The Chairman concluded, in effect, firstly that in all these circumstances it was not medical reasons that led to Ms Sivanandan's absenting herself on the 6th September, and, secondly, that there was no new material medical evidence newly laid before the Chairman but which could not have been available to Ms Sivanandan had due diligence been applied to the collection of it or on before the 6th September. We see the force of that but we are troubled by this. In her affidavit of 12th January 2001 Ms Sivanandan says at her paragraph 74:- "When I explained about my migraine attack to the Tribunal Clerk, apologised for being late, asked if she could tell the Panel the reasons for my late arrival .... and asked her to help to carry my bags into the room ... she promised to pass on my message to the Tribunal ....." In her paragraph 78 she says:- "at the start of the hearing I again asked for a postponement on the basis of my ill-health, my current migraine and other medical conditions which my GP had failed to mention." Mr Gordon, in his affidavit of 4th January 2001 says, of the 6th September:- "37. Ms Sivanandan said that, before she dealt with the first issue, "I would like your permission to tell you about my physical condition, as I was ill last night and this morning". The Chair of the Tribunal indicated that she should proceed. Ms Sivanandan continued:

"I went to the doctor yesterday evening. My GP will write another letter as well as my Counsellor. I have a bad migraine, and I cannot carry my bags. I am on anti-depression which give me side effects. My GP did not understand that this Tribunal was going to go ahead despite of her letter. It is clear to me that you are already aware that I am a registered disabled person. I know of many letters on the file which inform the Tribunal of my disability."

There are thus two assertions on evidence that suggest, contrary to the view taken by the Chairman, that it was mentioned that Ms Sivanandan was suffering from a migraine. If it was understood by the Chairman on the 6th September that Ms Sivanandan was suffering from a migraine then, given that the Tribunal had earlier ruled or held that "She is wholly incapacitated from preparing for the hearing or conducting it during a migraine attack", it would have been inappropriate on the Tribunal's part on the 6th September to await some formal application for an adjournment but proper for them to have adjourned, at any rate until the attack was over. Moreover, in her review decision the Chairman makes no mention of Mr Gordon's allegation that he "explained clearly to the Tribunal that the GP herself had told [him] that Ms Sivanandan was not to return the Tribunal under any circumstances" - see paragraph 48 of his affidavit.

[12]Whether the "interests of justice" within Rule 11 (1) (e) dictated that there should have been a review, or at any rate that it could not be said to be an application that had no reasonable prospect of success, depends in some measure upon a truly full understanding of the events and the sequence of events on the 6th September last year. As we mentioned in our earlier judgment on the appeal as to the strike out, we are of the view that we will not be able to attain a sufficient familiarity with the events of the 6th September in the absence of representation on the Respondents' part and, possibly, with evidence from that side of the case. Accordingly, again without necessarily indicating some particular arguable error of law which we can be sure is to be found in the Notice of Appeal, we think that the review matter also should go to a Full Hearing.

[13]It may be that, in relation to the review decision, directions will be wished for by one side or another and if that is the case then they are to be dealt with as we have explained in our judgment on the strike out. Subject to any special directions emerging in that way, we make only the conventional directions in relation to the appeal as to the review, namely that skeleton arguments should be exchanged between the parties and sent to the Employment Appeal Tribunal not less than 14 days before the date fixed for the hearing. As was the case in the appeal as to the strike out, the appeal is to be heard by the 3 who heard the matter on the 11th July unless application succeeds to the contrary.

[14]Lest there be any doubt on the subject, all transcripts of the judgments of the 25th April and of the various matters dealt with on the 11th July are to be sent not merely to Ms Sivanandan (in so far as not already sent) but also to all other parties as well. That leaves one matter only. In some of the 5 appeals that have been before us Ms Sivanandan asks for some or all appeals of hers to be consolidated - see EAT Rule 24 (5) (e) . As, before we encountered the request for consolidation, we had, as early as the 25th April of this year, embarked on taking the various appeals separately, the application for consolidation has never been formally ruled upon. It would, in our view, have simply made matters less easily digestible for all 5 matters to be consolidated. We have not stopped Ms Sivanandan from drawing attention in the course of one appeal to matter sworn or argued in other appeals and for the sake of formal response we dismiss the application for consolidation.