MS A D STEIN v CHEMSPA EUROPE [2001] UKEAT 572_01_1411

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 572_01_1411Case No Appeal No. EAT/572/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS A D STEINAPPELLANTCHEMSPA EUROPERESPONDENT
Before
Mr Justice Maurice Kay Ms G Mills Mr J C ShrigleyDate 14 November 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR JUSTICE MAURICE KAY : This case is listed today for a preliminary hearing. However, the Appellant has not attended. She has been in recent correspondence by letter and by telephone with the Employment Appeal Tribunal. Essentially, she is seeking an adjournment. That was sought mainly on the basis of medical need but the application was refused by the Registrar on the grounds that there was no supporting medical evidence.[2]There is still no supporting medical evidence, although there has been a further telephone call between the Appellant and the Tribunal staff, she maintaining that an expected medical report has failed to materialise because the consultant in question is himself on sick leave.[3]We have first had to consider whether it is appropriate to adjourn this matter. We have unanimously come to the conclusion that it is not appropriate to adjourn it. The medical matter is not the subject of a medical certificate or report. To the extent that other matters are advanced in an attempt to justification of an adjournment, reference is made in effect to problems in relation to the preparation of the case.[4]This is a case of some antiquity and, in our judgment, it is simply not right for it to hang about for any longer. We reached that conclusion having specifically in mind our assessment of the merits of the appeal. We have again unanimously come to the conclusion that this is an appeal with no prospect of success and it would not be kind to the Appellant or anyone else to allow it to continue. It is an appeal from a decision of an Employment Tribunal sitting at London (North) on 5 May 2000.[5]The heading to the decision records various aspects of the claim and the way in which the Tribunal disposed of them.[6]First, it records that the Appellant's claims in respect of Health and Safety, Equal Pay, Breach of Contract and unpaid wages under section 13 of the Employment Rights Act 1996 were struck out and dismissed under Rule 4(7) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 for failure to comply with a Tribunal Order dated 21 March 2000 requiring the Applicant to provide full details of those complaints.[7]Secondly, it records that the Employment Tribunal had no jurisdiction to consider the complaints of unfair dismissal, redundancy payment, failure to provide written reasons for dismissal and failure to provide itemised payslips, because the Appellant was never an employee of the Respondent under a contract of employment within the meaning of Section 230(1) and (2) of the 1996 Act.[8]Thirdly, it recorded that the Tribunal had no jurisdiction to consider any of the Appellant's complaints as they were not presented to the Tribunal within the relevant six month or three month statutory limitation periods for presenting those complaints and the Tribunal did not consider that it was not reasonably practicable for the Appellant to present those complaints to the Tribunal within the said statutory limitation periods. In any event, it would not be just and equitable to extend the time limits. In addition to that the heading to the decision records that the equal pay claim was withdrawn by the Appellant at the hearing.[9]The decision goes on to record the procedural history of the matter and how a sparsely formulated claim had been the subject of orders for further particulars which, in the event, were not properly provided.[10]The crux of the matter really related to two issues upon which the Employment Tribunal made specific findings. The first was whether the Appellant had enjoyed the status of employee; the second was the limitation point. The Employment Tribunal which heard the evidence came to clear conclusions as to her employment status. It recorded at page 9 of the decision, page 12 of our bundle:
"3 The Applicant insisted on keeping her self-employed status, as, for professional reasons, she did not want to be seen to be associated with the Respondent Company's products. She also carried on her own business. She is a qualified dentist."
[11]The Tribunal also noted there was no contract of employment, written or oral, and that the Respondent employed others under contracts of employment who were paid under PAYE and, unlike the Appellant, were provided with payslips.[12]Eventually the relationship between the parties, who had begun as friends, deteriorated and on the finding of the Tribunal it came to an end on 31 July 1997. There was some dispute about intermittent contact thereafter but it was resolved substantially in favour of the Respondent. In all those circumstances it seems to us that there is no prospect whatsoever of an appeal impugning the finding that the Appellant had never been the employee of the Respondent[13]So far as time was concerned, on the findings of the Tribunal, if there ever had been an employment relationship, it came to an end either on 31 December 1997 or on 31 March 1998, some 16 months before the presentation of her IT1 to the Employment Tribunal on 22 July 1999. Those were proper findings and the consequential findings about its having been reasonably practicable to commence proceedings earlier and there not being any just and equitable basis for extending time, seem to us to have resulted in findings that were inevitable.[14]We do not overlook the fact that there was also in the grounds of appeal an allegation of bias on the part of the Employment Tribunal. By an Order dated 23 August 2000 the Appellant was directed to provide a sworn affidavit in accordance with paragraph 9 of the Practice Direction and the Order added:
"Unless an affidavit is received by the EAT within 7 days of the seal date of this Order the allegation of bias contained in paragraph 1 of the Notice of Appeal will be struck out."
The bundle does contain an affidavit on that subject. It is at pages 25 to 27 of the bundle. It was sworn on 13 July 2001 and apparently received by the Employment Appeal Tribunal on that day; that was 11 months or so after the Order to which we have referred.[15]We would not be willing to consider an allegation of bias in those circumstances. However, we observe that the contents of the affidavit were not such as would ever have resulted in the Employment Appeal Tribunal overturning the decision of this Employment Tribunal on grounds of bias.[16]We have read with care the documents that have come to the Employment Appeal Tribunal in the last few days, indeed, up to and including this morning. It is regrettable that the Appellant appears to nurture a sense of injustice about what transpired in the Employment Tribunal. However, having reviewed the matter with care we are entirely satisfied that her appeal has no prospect of success and therefore we shall refuse her application for an adjournment and dismiss the appeal.