MRS T C WARDEN v ANGLIA AND OXFORD REGIONAL HEALTH AUTHORITY [2001] UKEAT 68_96_2111

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 68_96_2111

Case No Appeal No. EAT/68/96

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS T C WARDENAPPELLANT

ANGLIA AND OXFORD REGIONAL HEALTH AUTHORITYRESPONDENT

Before

Mr Justice Lindsay

Date 21 November 2001

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant. For the Respondent Ms S. Ashtiany Solicitor Messrs Nabarro Nathanson Solicitors Lacan House Theobalds Road London WC1X 8RW MR JUSTICE LINDSAY (PRESIDENT ) Ms Ashtiany, it is now 11.25. We have had this morning's fax from Mr and Mrs Warden. We have had the opportunity of reading it and have taken that opportunity. The first business of the day, as you know, has been described as being whether or not there should be an adjournment of this matter and if so, on what terms and for how long. We have considered the papers; we have read your opposition to an adjournment and I apprehend you still oppose the adjournment. We have been into the papers at some length between ourselves and this particular trio of three has had Mrs Warden (as Ms Von Goetz) before us or, at any rate, we have been concerned with her cases in the past, so we are fairly familiar with the background to the case. We have provisionally come to the view that it would not be right to adjourn the matter, for this chief reason: that it would seem that as hearing dates approach Mrs Warden begins to seek adjournment on medical grounds. It looks, consistently with Dr McClelland's view, that she is at the moment suffering from depression to a clinical degree and our fear would be that the only way of resolving the differences that arise in this case would be to have cross-examination of you, on the one hand, and Mrs Warden on the other, as to the events of 23 October 1995, and that the likelihood would be that if we were to adjourn for, say, six months, then at the end of that six months we would be no further forward because the then imminence of the proceedings, especially when coupled with the threat of cross-examination and possibly also of conducting a cross-examination, would be likely to drive Mrs Warden back into the state in which she is at the moment, namely, according to Dr McClelland, unfit to be heard. So we are in a really unattractive position; we have got a lot of sympathy for anyone who is unable, through health reasons, to represent herself and to conduct proceedings, and has so far failed to get anyone to act for her - we have sympathy for that position - but there is very little point for adjourning for six months or so unless one could be sure that at the end of it there would be effective proceedings. But that we cannot be sure of, and, for that reason, we thought we would explain our thinking to you. We are minded not to accede to the request for an adjournment, but also, of course, that ground leaves the position that there is no more reason to believe Mrs Warden on the one hand as to the events of 23 October 1995 or you on the other, and so, as the burden is on her to prove that there was procedural error on 23 October 1995, we get to the position in which the only way of resolving it, which is cross-examination, is not open to us. We get to a position in which the matter could never be resolved, in which case the proceedings would have to be dismissed because, the adjournment having been refused and no other solution being open to us, we would have to say that, on the balance of probabilities, the case was not proved. What would you say to that? Thank you sir. On the question of the adjournment, I have reluctantly come to a similar conclusion to the Tribunal here before me and I have noted in particular that the history of this condition, as evidenced by Mrs Warden's doctor's letter, seems to be that in the face of the prospective hearings, Mrs Warden's condition worsens considerably, and that it appears to be the prospect of pursuing the Respondent. This is not a matter that the Respondent brings before you, but the prospect of applying our mind to the way she wants to pursue the Respondent, which causes her health to be put at risk. The difficulty that the Respondent has not had is that there is plenty of evidence and I would like the Tribunal who now have many very large files on this case, of quite a lot of intellectual energy being devoted purely to the process of keeping the matters alive so that I do not know, for example, if the Employment Appeal Tribunal is aware, but as the Respondent's solicitor, I am aware, that there has been a whole concurrent history of applications to the Court of Appeal. Yes, in relation to the [date?] and I understand also, various other matters, so that my first point would be that I respectfully agree that the evidence that is before you suggests that it is actually the whole issue of keeping this appeal alive which has caused this condition [Mrs Warden's] and I thought it was most alarming to read in her Consultant's letter that it was precisely these matters - a most annoying suggestion, at page 1 of the supplementary bundle, Mrs Warden has developed a very serious depressive illness, as a direct result of her current situation, and her current situation is shorthand for her attempt to pursue this and other respondents about which I do not know. That was the first matter sir. The second matter that I did want to address to you, very briefly, was the interests of justice in finality and it does seem to me that that is a proper matter for this Court to take into consideration. We do not need authority quoted to you for something which is a well established proposition, if the finality of litigation is to be desired, and this is one of the underlying matters to which Courts ……? have regard. As you say yourself, ……..in the Directions Hearing, when you saw before you a matter which had first appeared before the Industrial Tribunal ( and I use that phrase advisedly ?) was over six years ago. So this Court does, it seems to me, a duty to have regard to the interests of justice and the interests of achieving finality in cases. The third point that I wanted to bring before you sir is, because it differs, with great respect, from some of what you said, was this: that the Applicant, although there is lots of paper work before you, really only has one issue before you, which is whether or not the Tribunal exercised its discretion ……..in the way in which - took steps in the way in which it did not put it in its power to exercise its discretion. Well, whether there was procedural error on 23 October 1995, In the substantive matter, I would seek to argue what I will do very briefly here in the preliminary matter, which is that you are entitled to have regard to the strength of the issues that are to be determined, in determining whether appellants should have more and more opportunities to pursue matters before the Courts, bearing in mind this matter has been adjudication - it is not a first instance case, and what I say about that, sir, is that having looked carefully at all the judgments, it seems to me that there were three matters, in respect of which she thought the Tribunal had somehow misdirected itself, through procedural error, and those are the three matters I set out in my Skeleton Argument, and those three matters do not really need you to consider examination and cross-examination because it seems to me they are answered in the Tribunal's Decision, on the face of it, and of course at an appellate level, it is always extremely satisfactory if you can take the Decision of the Court below, on the face of it, and see whether, on the face of it, it reveals the errors which one party or the other seeks to suggest. Setting aside who said what on which point and how many words I said, and how many words Mrs Warden said at the time and so on, on the face of it I think the Tribunal's Decision reveals none of the errors which she thinks it fell into, and therefore, that it would be another matter for you to take into account, in deciding whether or not this matter should ……..? So in that particular respect, I differ, very respectfully, slightly from your exposition of the case, and if the matter …………? By all means, yes we have of course, your Skeleton Indeed sir, you have sir, and if I might ask you to turn to the Tribunal's Decision in the bundle, which is at pages 52- 58. It might, sir, be as well for this Tribunal just to refresh its memory about the way in which Mrs Warden produced this proposed amendment and that was in a deposition dated 5 October at page 84 of our bundle At the page beginning "held accountable"? That's right sir, and half way down that page we have got a section that says: Section 8 part 1) Yes. "I am applying for the requirements shown in the first part of this account to be admissible for the claim under the Sex Discrimination Act. I did not know until reading the legal precedents that these conditions of work could be regarded as discriminatory" Although it is the next passage that the Tribunal, of course, read:

"although I could certainly observe a greater effect on myself and female colleagues than on men. "

And so, sir, there was already, at the point that leave was sought; an acknowledgement that the Applicant was fully aware of the factual matters. She could see that these matters that she wanted to raise had a greater effect. It was her contention that she was not, at that point, aware of the legal wrapper to put round this, namely that she could bring a claim for discrimination, and sir, it seems to me that, going through my Skeleton, that the Applicant really raised three matters in her Notice of Appeal and her affidavit ? amendment ? and I have set this out in my Skeleton sir, (Yes, I have got three … ) Yes we have all got it. If I might be able to read it -…I think that Applicant's first point is that the Tribunal fell into error because it took the date at which the three months should be reckoned ..,?. as being at the beginning of her employment back in November 1992, thus making her two or three years out of date, and I think that one of the things that she says that she wanted to have an opportunity to make it clear to the Tribunal that this matter had been going on throughout, and that she had not really become aware of her rights until she read these documents, a great deal later. However, sir, in my Skeleton Argument, I have set out the Tribunal's finding in this regard at paragraph 17, on page 57, and sir, for this particular aspect, namely the date, we can see from the evidence of the Decision itself that the Tribunal was not limiting itself to the starting of her employment, about seven lines up from the bottom, we can see that they have taken the allegedly discriminatory acts as potentially occurring throughout the employment, but have directed themselves that the employment ended some fourteen months before the date at which the Applicant wanted to bring her claim, so by the time she brought her claim, she was a eleven months out of time, reckoned from the end of employment. It is to be said that the Applicant thought the Tribunal had somehow misdirected itself on this point, but clearly it did not. It took the effective date as being, at the latest, at the end of her employment, if the matters about which she wanted to complain, were continuous acts. Now there is some misapprehension in the Applicant's papers and her Notice of Appeal where she uses the phrase "time beginning to run from" the date in August or September in 1995, a year after her employment, when she first brought the cases which she has. Well, of course, time does not begin to run from that date, time runs from the date that the discriminatory acts occurred and the issue for the Tribunal, as it rightly identified, was whether it should exercise its right of discretion to allow her to proceed on that time basis, and that just seems to be an understandable misunderstanding by her as a lay person as to when time begins to run. So sir, the distinct? issue is, it seems to me, is fully answered by the Tribunal's own Decision document, they do not limit themselves to some date prior to the end of her employment in considering whether it was just and equitable for it to extend …There might have been argument about that matter - if we ever got there - but the Tribunal, as I have said at page 2 of my Skeleton took the best case in this regard …..? The second issue which the Appellant addressed us at length in her various paper, is I think is where she accuses me of giving misleading information to the Tribunal, or not allowing my misleading representations to be corrected, is what I have labelled the "Advice issue".. The Appellant has been in her papers, and was before the Tribunal, very keen to make the Tribunal understand that although she accepted that she had had advice from the EOC and the BMA, both of which …………………………………………………………..? 1991? She also wanted to put in some letters of evidence showing that she had not really had advice as such about the Sex Discrimination Act point which she wanted to bring forward, but again, it seemed to me, with great respect sir, that this was not something the Tribunal had been under a misapprehension about, because it was not particularly material. The issue before the Tribunal was not exactly the EOC told the Applicant, exactly what her lawyers told the Applicant, exactly what the BMA told the Applicant, the issue before the Tribunal was simply that was the Applicant aware, during her employment, that there were matters which were gender based which she was upset about? And her own document confirmed that she was, because she was aware of the differential effect, as she said, in men and women, and did the Applicant have access to sources of advice to whom she could have said what she wanted to say, in order to bring a claim timeously, had she so wished? So it was not - again the Applicant, I think, in her papers is quite exercised about whether or not the Tribunal misunderstood the nature of the content of the contact with these external bodies, but the Tribunal was not concerned with the nature of the contact of these external bodies, and indeed, makes no reference to the precise nature of contact, merely that part of the evidence that has come out was, as it seems, at the very beginning of her employment, she had actually been in touch with all these people, and indeed, at paragraph 10 of the Tribunal's Decision, records that "She had written on a number of occasions to the Secretary of State for Health drawing attention to the problems and the inequalities that she perceived. She had also sought advice and guidance from the Equal Opportunities Commission as far back as the summer of 1993." Now what I submitted on behalf of the Respondent was that it was open to her to take relevant advice about matters that she knew she did not like, even if she did not know precisely what label to attach to them, or what legal wrapper to put round them, and I think my submissions are briefly, but fairly paraphrased and precis-ed by the Tribunal in its paragraph 13 at page 56 which summarises my submissions. The second half of that paragraph starts:

"She submitted with regard to the claim under the Sex Discrimination Act that the time ran not from the date of the termination of the applicant's employment, but from the time when the act complained of was done …..and that it would be just and equitable under Section 76(5) to continue to hear the case."

I pause there. The Tribunal has since found against me and decided to take it from the end of the employment. The Applicant, I submitted "had access to advice throughout this matter. She had known of the factual basis of her complaint certainly since May/June 1993" which is the matter that became apparent in evidence, and if as she says, she was:

" unaware of the means of addressing this under the Sex Discrimination Act, this was one factor amongst others which we have to consider in deciding whether it would be just and equitable to allow the matter to proceed."

Of course there is a well established line of authority that says mere ignorance of the law is by means a reason for extending time, and all the more so, if we say that ignorance of the law in the context of an applicant who has been pursuing sources of what would in any court be appropriate sources of advice, and it was a matter on which she was cross-examined. My Skeleton points to the bits in the affidavit which show that there was examination on this point, and the affidavit had appended to it the manuscript notes of the article [the articled clerk at taken at the hearing .which preceded it]? It was on the second point, namely that somehow by raising this "Advice issue" I misled the Tribunal it is apparent on the face of its Decision that the Tribunal was ……..? by no means misled on this point. The final point concerns the Applicant's assertion that she was not allowed to make her point after I completed my submissions and so really the best evidence as to what the Applicant wanted to do, is actually set out in the articled clerk's notes of the hearing, and the recollections of the members which were not contemporaneous but were at least submitted two or three years ago now, and it is absolutely clear from the manuscript notes which are appended to my affidavit, that the matter on which the Applicant wanted an opportunity to resume her evidence, in effect, was the issue that went to the question of the date of termination of her employment. That was the matter about which she was exercised and the matter which she wanted to take up with the opportunity to make submissions against, and it was when the Chairman ascertained with her that those were the matters with on which she was seeking to re-present her evidence that he said "We have taken your points and we understand them" (?) and again I have no doubt that the Applicant would have, the Appellant now, would have wished to say this on that point .but it is well established that once the Tribunal has the point, it is entitled to move the matter along and say "I have the point" . The contemporaneous notes which were made in circumstances in which no issue had been taken with the Tribunal's Decision, indeed before the Tribunal's Decision was made, do not resolve any of the matters that the Applicant, now the Appellant, has adverted to in relation to the change in atmosphere, the expression of discontent, and so on, which can therefore only be an incorrect memory of the event. So with the greatest respect, I would submit that it is centrally important for this Tribunal, in exercising is judicial conscience, to determine the merits and to do justice and I therefore submit it is relevant for this Tribunal to determine whether or not this case is, as I say, basically misconceived, or in this case, is in fact, one which because it has strong (?) ought to be given greater weight than it has been given before (?) So if you want to hear from me about the various matters raised against me personally by Mrs Warden? No I do not think so. I think that is all I can do to help and perhaps finally, you would have realised and I am sure that the Anglia and Oxford Regional Health Authority is no more, Yes, we are told that . having been for some time, and I think there is a sense in which there will be increasing prejudice to the Respondents if the matter continues to hang over. I now know probably more about this matter than any of those directly instructing you, and it is not a satisfactory situation for a party to exist. Thank you, we will just rise to consider the matter between ourselves. We have before us by way of a full hearing the appeal of Mrs Therese Warden in the matter Warden -v- Anglia & Oxford Regional Health Authority . The Employment Tribunal at Reading on 23 October 1995, dismissed Mrs Warden's complaint as to sex discrimination on the ground that it was out of time and that it was not just and equitable to extend time. That is chiefly the matter that is pursued, or which has been.

[2]Today, Mrs Warden is not represented and has not appeared in person. Ill health has been asserted as a ground for her non-attendance, and a doctor's report has been submitted, as we shall come on to.

[3]Mrs Warden has other cases at the Employment Tribunal and at the Employment Appeal Tribunal, under her maiden name, Von Goetz, and the case has been before us, this particular panel of three at the Employment Appeal Tribunal, on other occasions or other branches of her litigation have been before us, and it is not unlikely that I shall inadvertently call her Miss Von Goetz from time to time. The Health Authority, Anglia & Oxford has been represented today by Ms Ashtiany, who has put in a helpful Skeleton Argument.

[4]The first business of the day is to consider Mrs Warden's request for an adjournment. Should it be granted, and if so, for how long and what terms. The time is now five to twelve, twelve noon; we have received this morning some additional faxed material from the Warden side and we have taken the opportunity of reading the ten pages or so added this morning in that way.

[5]It is necessary to set out in some detail the chronology of the matter because, without understanding the background, it is almost impossible to understand the foreground. On 28 February 1995 Mrs Warden lodged an IT1 for sex discrimination, equal pay and pension. She had been employed as a part-time Senior House Officer in General Surgery from, she said, 9 November 1992 until the end of August 1994. In the box of the IT1 that asks the complainant to specify the date of the event complained of, she said:

"9 November 1992 (ON APPOINTMENT)" and she set out the nature of her claim, as it then was, in box 12, and it included this passage: "

My complaint is that full-time doctors are paid at "Standard" * rates for the first 40 hours worked and "additional duty"* rates* for the (contractually obligatory) overtime, while part-time doctors (including myself) are paid at "Standard rates " for the proportion of the 40 hours for which they contract (in my case 7/10 th s or 28 hours) and then at ADH rates for the residue, even when this is more than 40 hours in total (in my case, 55). Pension time is only credited at the proportion of the 40 hours contracted for, so I accumulated service at a rate of 0.7 years per year, despite being on duty for 55 hours per week. A very large majority of part-time doctors are female, so I propose that this is discriminatory. *ADH rates are 50% of the Standard hourly rates." So that was the nature of the claim as it was then made. One noticed that even in 1995, the suggestion was that events going back to November 1992 would be likely to be in play.

[6]On 21 March 1995, the Employment Tribunal permitted an amendment to the IT1 to refer to the Equal Pay Act 1970 and to the Treaty of Rome. The nature of the amendment was not put before the Employment Tribunal, and just what the amendment was to consist of, and by what date it would need to be framed, was left unstated.

[7]On 5 May 1995 an IT3 was put in by the Respondent Health Authority, denying sex discrimination and discrimination under the Equal Pay Act and under the Treaty of Rome. On 29 August 1995 there was a directions hearing at the Employment Tribunal and Mrs Warden was required to give Better Particulars and was given the ability to amend, but still without any form of particular amendment being identified. On 5 October 1995, Mrs Warden did supply Particulars, at some length, and made requests to the Health Authority for certain documents.

[8]The case having thus been fleshed out more fully, on 20 October 1995, the Health Authority put in an amended IT3 and a time bar point was taken. The Notice of Appearance, so amended, said:

"The Respondent takes the point that the originating application, being an equal pay claim within the meaning of section 1 of the Equal Pay Act and Article 119 of the Treaty of Rome, was not referred to the tribunal within the requisite time limit for either statutes."

A little later, b. "On 4 August 1994, the Applicant wrote to the Respondent specifically about the termination of her employment. She informed the Respondent that her last day at work had been 15 July 1994 and she proposed an end date for the employment of 26 August 1994, suggesting that she should take the intervening time as paid study leave. This was agreed and accordingly the agreed termination date for the employment became 26 August. The agreement was evidenced in two letters from the Respondent dated 9 September and 2 November 1994 and in a form signed by the Applicant. c. The Applicant's Originating Application was presented on 28 February, being the last day of the month. d. (Save for a provision which is not relevant to this claim), no claim shall be referred to an industrial tribunal in respect of the Equal Pay Act if the woman has not been employed in the employment within the six months preceding the date of the reference. In line with established authority in Fisscher and Biggs v Somerset County Council the Respondent relies on the same time limit in relation to the Applicant's claim under Article 119. e. The Respondent contends that the Applicant was clearly not employed by the Respondent within the period specified by the statute. There is no provision for extension of the time and it is clear that the Applicant was aware of the requisite time limit.

[9]So far as concerned the new way of putting the Sex Discrimination Act claim, the IT3 said this as its paragraph 3:

"3. Proposed New Claim a. The Applicant is seeking effectively to present a new claim or claims alleging discrimination on grounds of sex. The Respondent resists this attempt. The complaint in the original claim was absolutely clear. It contained no allegations which could fall within the ambit of the Sex Discrimination Act. The time limit for presenting any claim under the Sex Discrimination Act is three months and the Applicant at no time has presented any claim within such a limit. Accordingly there has at no time been a timeous claim. b. The Respondent further takes the point that it would be wholly inequitable to permit the Applicant to present a new claim some 14 months after the termination of her employment."

Well, that was on 20 October 1995 and on 23 October 1995 there was a hearing at the Employment Tribunal. On 7 December 1995, the Employment Tribunal sent its Decision to the parties; the application made by Mrs Warden was dismissed.

[10]It was the Decision of the Tribunal at Reading under the Chairmanship of Mr J G Hollow, sitting with Mrs Ratcliffe and Mr McDonald. The Tribunal said inter alia, at their paragraphs 5, 6, and 7 as follows:

"5. The matter came before us as a preliminary issue we addressed the question as to whether or not the claims were out of time and, if so, whether, if possible, they might be allowed to proceed. 6. We heard evidence from the applicant and considered a number of documents which she submitted. We heard representations from both parties before reaching a decision. 7. The first question to be addressed was the exact date of termination of the applicant's employment, and, thereafter, the reasons for the delay in submitting the application."

[11]In paragraph 8, they said, of Mrs Warden: "She conceded in argument to us that a claim brought under the Equal Pay Act 1970 had to be presented within six months (Section 2(4) ) and that the Tribunal had no jurisdiction to extend that time. Nevertheless, she argued that he claim was within time. By extension of that argument, it was also her case that her claim, so far as it arose under Article 119, was also within time. 9. The applicant conceded that on any showing her claim under the Sex Discrimination Act was presented out of time, but nevertheless argued that it would be just and equitable for the Tribunal to continue to hear it on its substantive merits.. 10. The applicant gave further evidence that at the time material for the purpose of this application, she had originally two, and latterly three, small children. She gave evidence, which we accept as to the difficulties she encountered as a working wife and mother of small children, particularly having regard to the pressures and long hours occasioned by her work as a Senior House Officer." and the Tribunal found that she had written on a number of occasions to the Secretary of State for Health drawing attention to the problems and the inequalities she perceived.

[12]At paragraph 11, the Tribunal turned to the Sex Discrimination Act, they said:

"11 With regard to her claim under the Sex Discrimination Act 1975, the applicant stated that until September, she had been advised informally by the Equal Opportunities Commission."

In their paragraph 14, the Tribunal said:

" …….it seems to us that where an employee gives her own notice and specifies a termination date, it is not unreasonable for an employer to accept that at face value."

In paragraph 14 and going on, in 15, the Tribunal said:

"….In all the circumstances, we find that the applicant's employment terminated on 26 August 1994. 15. In the light of that finding, we have no alternative but to dismiss the application so far as it arises under the Equal Pay Act 1970. The term "month" means calendar month and her application should have been presented by 25 February 1995;"

And an authority is cited for that. Then in paragraph 16:

"16. Equally, we have concluded that so far as the claim arises under Article 119 it is out of time. On the basis of Fisscher we are satisfied that the appropriate limit would either be three or six months. It is unnecessary for us to decide which of the two it is since, on any showing, the applicant is out of time."

[13]Then they turn to the Sex Discrimination Act and at the foot of paragraph 17, they say:

"…….We take account of the applicant's evidence as to the difficulties which beset her and her reasons for seeking to delay the application until her position was secure. Nevertheless, we have come to the conclusion that it would not be just and equitable to allow this matter to proceed to a substantive hearing. We reached this decision with some sympathy for the applicant. She is a determined and competent lady who has prepared and argued her case with determination and skill."

I should, perhaps, have mentioned in that context that Mrs Warden is a Fellow of the Royal College of Surgeons.

[14]That, as I mentioned, was sent to the parties on 7 December 1995. On 16 January 1996, Mrs Warden lodged a Notice of Appeal. Her style of drafting is not concise, but she did begin the Notice of Appeal with a summary of what was to follow, and she began by saying:

"The Tribunal erred in law in the following respects: 1. That the conduct of the tribunal was in breach of its own rules, specifically Rule 9. This led, among other problems expanded below, to a literal refusal to allow me to speak to defend new allegations and to correct and clarify misinformation and misunderstanding. 2. That the tribunal did not understand fully the nature of the work and contract on which I was employed and would not allow correction of this……" and I do not need to quote the rest of that ground "3. That the decision not to allow an apparently late addition of a claim under the Sex Discrimination Act was based on inaccurate information which I was not permitted to correct. The decision was taken without due regard for the character and nature of the applicant and the level of advice received from a statutory body. I was not permitted to challenge the claim by the respondent that it would not be just and equitable to allow the claim to be heard. There was an error of law in taking the time for the claim from the first date rather than the last date of the alleged occurrence, and a failure to consider the nature of the allegations when making that decision. 4. That I was not able to ask that the Secretary of State be joined to the action despite having described, in the amended originating application, the Secretary as being in overall charge of the national terms and conditions of service…….."

Again, I do not need to add to that. "5. If the Secretary of State had been joined the Equal Pay and Sex Discrimination claims would have related to past and current employment, and Grounds 2 and 3 would have been irrelevant and the case could have been heard on its merits."

[15]In the normal way that Notice of Appeal then came before the Employment Appeal Tribunal as a preliminary hearing. It did so on 18 March 1996, before a constitution headed by Mr Justice Mummery, then President. He was sitting with two lay members of quite unrivalled experience at the Employment Appeal Tribunal and the ruling was that one part only of the Notice of Appeal was permitted to go to a full hearing. Mrs Warden was in person at the time.

[16]The Employment Appeal Tribunal held that the termination of her employment was, indeed, 26 August 1994. Quoting from the judgment given by Mr

Justice Mummery on that day, he said:

"In our view, those letters are material on which the tribunal were entitled to find that the termination date was 26 th August."

And a little later, they said:

"If there was sufficient material on which the tribunal could find 26 th August, that is a factual finding which we have no power to disturb."

And the EAT said:

"We therefore decide on Mrs Warden's equal pay case that she is not able to pursue it, because, on the Tribunal's findings of fact, it was out of time and there is no discretion under the statute to extend the time."

[17]Then, a little later, the EAT said this:

"On the second part of the case, the Tribunal gave their decision in paragraph 17. They said in paragraph 16 that the Claim under Article 119 was out of time. In our view, that is correct, because the same time limit applies to claims under Article 119 as applies to claims under Equal Pay Act."

[18]Then the Tribunal turned to the Sex Discrimination claim, and they noted as follows:

"The essence of Mrs Warden's complaint, on this part of the case, is that she was not given a proper opportunity to give evidence and make submissions to the Tribunal in support of the application to extend the time on the just and equitable basis. Under the Sex Discrimination Act the time limit is three months from the act of discrimination. On that basis, even if Mrs Warden were right, and her employment did not cease and the discrimination did not cease until 31 August 1994, she would still be outside the three months time limit when she presented her claim. The question, therefore, was whether the Tribunal should exercise its discretion to extend time on the just and equitable basis."

And a little later, the EAT said:

"The case turns on the just and equitable point. The point of law which is arguable is that if, as Mrs Warden alleges, she was not permitted to address the Tribunal with evidence and argument on that point, there may have been a procedural error on the part of the Tribunal. It is premature to decide whether there was a procedural error. At the moment, the only details that we have relating to the procedure adopted before the Tribunal is that set out in the Notice of Appeal."

And a little later:

"We therefore propose to direct as follows in this case: that the case is to proceed to a full hearing, but only on the question of the discretion to extend the time limit for the sex discrimination claim, that within a time period which we shall discuss with Mrs Warden, she is to swear an affidavit giving details of what she says are the irregularities in the procedure of the Tribunal, and, when the comments of the Chairman have been obtained on that affidavit, and made available to both sides, the case will be listed for a full hearing at which the Health Authority can be represented."

And the Employment Appeal Tribunal noted finally:

"At present Mrs Warden does not wish to pursue the claim against the Secretary of State."

And it was decided that there was no need at that stage for the Chairman's Notes.

[19]So that was the only matter that was permitted to go forward. It is notable, of course, that it is not an easy matter for an appellant to assert because whether it is appropriate under the just and equitable basis to extend is very much a matter of discretion and depends on the surrounding facts which, of course, findings as to which are solely within the province of the Employment Tribunal itself.

[20]On 2 May 1996, Mrs Warden sought leave from the Court of Appeal to appeal to the Court of Appeal against that Decision of 18 March 1996. On 14 August 1996, Miss Von Goetz put in an affidavit of some eleven and a half pages to which I will return later, setting out her complaints in the manner that the Employment Appeal Tribunal had directed. That was made available to the Chairman and on 4 October 1996 the Chairman answered the affidavit and also observations from the two lay members, who had sat with the Chairman, were made available. Again, we will refer later to precisely what was then said.

[21]On 6 November 1996, the Respondent put in a Respondent's answer to the appeal saying, inter alia , that there was no procedural error in the Industrial Tribunal's conduct of the hearing, as alleged, or at all. There is no substance, says the Respondent, to the Appellant's complaint that she was not permitted to address the Industrial Tribunal. Specifically, the Respondent denies, as appears to be suggested, that new evidence was adduced by it in its final submissions, to which the Appellant was denied the opportunity to respond.

[22]On 11 March 1997, a single Lord Justice, Lord Justice Hirst, gave leave to appeal to the Court of Appeal against the Decision of the EAT given on 18 March 1996. Because of the impending appeal to the Court of Appeal further proceedings at the Employment Appeal Tribunal were informally stayed in the meantime.

[23]Also in the meantime, in February 1997 and February 1998, Mrs Warden, as Therese Von Goetz, had begun other Employment Tribunal proceedings. We have no reason to think that the Health Authority contributed unreasonably to the delay between the step that we have last mentioned: that - of 11 March 1997 - and the step that we shall next mention, on 2 June 1999.

[24]On 2 June 1999, Mrs Warden's appeal to the Court of Appeal against the Employment Appeal Tribunal's Decision under Mr Justice Mummery, as President, was dismissed by consent, with an order that Mrs Warden should pay up to £2000 in costs of the Respondent. From now on the only permissible point to be raised on appeal to the Employment Appeal Tribunal was thus the point as to there being procedural error or not, on the hearing of 23 October 1995, in relation to the time limit and the sex discrimination claim.

[25]However, on 28 August 2000, Mrs Warden wrote to the Employment Appeal Tribunal, seeking to add a new ground, namely that the original Employment Tribunal had had no jurisdiction at all. At this stage the Employment Appeal Tribunal had not received the Court of Appeal's Decision, but had, I think, been told of it informally by Mrs Warden.

[26]On 15 September, the Employment Appeal Tribunal stayed matters further until it received the Court of Appeal's Decision and it wrote to Mrs Warden saying so. On 28 November the Employment Appeal Tribunal had still not heard from Mrs Warden with the papers from the Court of Appeal but by 7 December 2000 the Court of Appeal papers had been sent to the Employment Appeal Tribunal and Mrs Warden then sent a further twenty or so pages to the Employment Appeal Tribunal.

[27]On 19 January of this year I gave directions as to the amendment of the Notice of Appeal which was then being sought. This was done by letter to Mrs Warden, with a copy to the solicitors then acting for the Health Authority, and the letter said, inter alia :

"Within 10 days from today you [that is Mrs Warden] are to serve on the EAT and on the Respondent a copy of your proposed Amended Notice of Appeal clearly identifying (by red print, underlining or some other clear system) precisely what form of amendment you seek leave for, so that all can see at a glance what shape the whole Notice of Appeal would take if the amendments were added. If within 7 days of their receipt of such a form the Respondents indicate they do not oppose such amendment, leave for it will be given. If they oppose the amendment (in whole or in part) there will be a directions hearing."

[28]On 25 January the Respondents indicated that they did oppose amendment in principle. The time for the supply of the draft amendment passed without a draft amendment, pursuant to my letter, being received by the Employment Appeal Tribunal, although it is fair to say that Mrs Warden at some point applied for an extension of time.

[29]On 21 February of this year a draft amended Notice of Appeal was supplied to the Employment Appeal Tribunal. On 7 March of this year the Respondents, having now seen what the precise amendment sought was to be, opposed it in detail. In a letter of that day, they say inter alia:

"…..There are a number of reasons for this objection. In brief, it appears to the respondent that the appellant seeks now to reopen by other means matters which formed the basis of her appeal from the decision of the EAT to the Court of Appeal and which she withdrew, by consent, in May 1999. Further and alternatively, the proposed amendments seek to raise new matters which should have been appealed timeously and which the appellant could now pursue only with injustice to the respondent, especially in relation to stale evidence which the respondent is not any longer in a position to canvass for reasons to which we refer briefly below."

And later they said:

"It would also be wrong in principle to permit new grounds to be added which materially altered the nature of the claim on appeal. We should add perhaps that the respondent no longer exists and we act for the body which has taken some responsibility for concluding outstanding matters, such as this one. Our client is extremely concerned that the delays which have already been incurred and in consequence of which all of the personnel associated with the applicant's short contract with their predecessors have either retired or moved on."

[30]On 22 May, there was a further directions hearing at the Employment Appeal Tribunal; no one then appeared for Mrs Warden. The matter came before me in Chambers, sitting alone, and the Order made included this:

"IT IS DIRECTED in accordance with the Judgment that the Respondent do file an affidavit within 21 days of the seal date of this Order in respect of the single issue that was directed to go forward to a full hearing on the 18 th day of March 1996. IT IS FURTHER DIRECTED that the Appellant do file an affidavit in reply, if so advised, 14 days thereafter. AND UPON the application of the Appellant for leave to amend the Notice of Appeal to include a 'Rule 6' point and a 'time bar in conflict with European Legislation' point IT IS DIRECTED that the aforesaid application be disallowed."

[31]A judgment explains what I said that day. In paragraph 2 it reads as follows: 2 Today Ms Ashtiany has appeared before me on behalf of the Anglia & Oxford Regional Health Authority but Mrs Warden has not attended. She sent a fax of today's date at 6:50am that says:

"I am writing briefly to apologise for the fact that I will not be present at the meeting for directions as I am unable to attend. I shall write a letter to follow this with my reasons and leave a message on your answering machine."

Later, at 10:35am, a further fax was received from Mrs Warden and it includes a letter as to her medical position written by Dr Josephine Withey of the Heavitree Health Centre in Exeter. That letter is dated 27 April 2001; why it has not been sent earlier is unclear. It says:

"Dear Sir/Madam This lady [it is referring, as is plain from the heading, to Mrs Warden] is a patient of mine and has come to me today complaining of exhaustion and sleep deprivation – she has many domestic and professional pressures including family illness. [I'm afraid the grammar is rather confused] She is currently finds it definitely difficult to function and I have advised her to take time to rest from these pressures in order to recover. I have suggested 3 weeks. I hope you will take the above into consideration."

And then, continuing with what I said rather than with what the letter said:

"Of course, it now being 22 May, the 3 weeks from 27 April have expired. 3 In the premises, and given that I have to pay regard to the position of both sides and also to the appalling length of time this matter has already taken, it seems to me appropriate to proceed today as best I can in Mrs Warden's absence."

I mentioned the "appalling length of time this matter has already taken" and it comes as something of a shock to realise that what is being talked about are complaints in relation to an employment that ended on 26 August 1994. I then went over the chronology of the matter, and in paragraph 8, I said:

"First of all it must be borne in mind that the Employment Appeal Tribunal decision of 18 March 1996 stands exactly as it ever has stood. It was appealed to the Court of Appeal in the sense that Mrs Warden sought leave and got leave to appeal to the Court of Appeal but the appeal was then withdrawn and hence that order cannot be challenged in any way at all. It directed, as I have already quoted, only one matter to go forward, the question of the discretion to extend the time limit on the sex discrimination claim. That is the only matter that, subject to amendment as I will come onto in a moment, is able to go forward."

[32]I dealt with what was called the "Rule 6 point", which had troubled Lord Justice Hurst, which arose out of the fact that the issue of the time bar as to sex discrimination was raised only three days before the Employment Tribunal hearing, and, having examined the chronology in relation to that, in some detail, I concluded that in my view the Article 6 argument, which Mrs Warden wished to raise, was hopeless and I did not allow an amendment of the Notice of Appeal for it to be added at that stage. I said, in paragraph 13:

"13 When the matter goes forward to the Employment Appeal Tribunal, the Employment Appeal Tribunal is thus to concentrate on the sole point that Mr Justice Mummery in his judgement directed should go forward"

I continued:

"14 The Full Hearing, having regard to observations made by Mrs Warden and also having heard Ms Ashtiany relative to conversations she has had with Mrs Warden, should be fixed for hearing in mid to late October on the basis of a hearing for one day." and I added: "

On Mrs Warden's side it would be appropriate that Mrs Warden should include within her skeleton, in summary form (as Ms Ashtiany put it, by headlines or bullet points) quite what it is she says that she would or could have added when, as she claims, she was cut short in reply at the hearing at the Employment Tribunal." Accordingly the full hearing date was to be fixed quite a long way forward and that it was done so was at the particular request of Mrs Warden. It was put back, in the event, until today, 21 November.

[33]On 7 June of this year the Respondent's solicitor, Ms Ashtiany, deposed as to the Employment Tribunal's conduct on 23 October 1995 and also exhibited notes made at the time by an articled clerk then appearing with her.

[34]On 6 August of this year I refused a review of my Decision on 22 May. On 23 October 2001, I refused a review of my Decision of 6 August. No appeal to the Court of Appeal, so far as I know, has yet been permitted, in respect of the EAT Decisions of 19 January, 22 May, 6 August, or 23 October of this year.

[35]On 8 November Dr McClelland wrote direct to the Employment Appeal Tribunal. Dr McClelland is a consultant psychiatrist at Wonford House Hospital in Exeter. I will not read the whole of the letter but only some particularly relevant parts. They say as follows:

"Mrs Warden has developed a very serious and severe depressive illness as a direct result of her current situation"

[36]Just pausing there, it is not entirely clear what the "current situation" was that Dr McClelland had in mind, but it would seem to be the imminence of proceedings, and a hearing in those proceedings. Continuing with the letter:

"It is clear that her condition has moved beyond what can be managed in primary care and that urgent intervention is required. I am writing to ensure that essential treatment can begin immediately and then continue safely."

A little later it says:

"There is another hearing in the near future (on 21 st November 2001). Mrs Warden is too ill to attend any meetings."

On the next page the letter says:

"It is imperative that all legal action is stalled until Mrs Warden has had the opportunity to receive the treatment she requires for this very serious depressive illness. Failure to stall the legal actions I believe puts Mrs Warden in very real danger. Her judgment is clouded at present by her illness. Tragedies do occur when patients believe life is not worth living or in the perceived situation that legal battles would be resolved by death. Mrs Warden requires a period of six months intensive treatment in order to allow her to regain her physical and mental strength."

And a little later:

"With such significant illness as this there is a real risk of relapse in the future if unreasonable pressure is brought to bear during the recovery phase."

I mention, because it becomes a little material later, that the letter does not say that Mrs Warden was a disabled person within the meaning of the Disability Discrimination Act 1995 .

[37]On 9 November Mrs Warden put in some four to five pages of close typing, which she was able to compose despite Dr McClelland's observations, and she requested an adjournment of today's hearing, but she wanted the doctor's letter to be kept confidential.

[38]On 14 November the Employment Appeal Tribunal, not knowing whether the Respondent had received a copy of the doctor's letter, thought it right first to clear with Mrs Warden that she would have no objection to the Respondent having a copy of the Doctor's letter, and wrote and asked that the EAT should be free to give a copy to the Respondent. It might be that that was unnecessary, but it was, nonetheless, a thoughtful request..

[39]On 14 November, a rather strange letter was received from the Disability Rights Commission in Edinburgh, it said:

"I understand that Mrs Warden is scheduled to have a hearing before the Employment Appeal Tribunal on 21 November 2001. In light of the evidence provided to us by Mrs Warden from GP, Dr Withey, and Dr McClelland, consultant psychiatrist, we would be grateful if you would give her request for an adjournment serious consideration."

What Dr Withey's evidence was, as given to the DRC in Edinburgh, is unclear although, perhaps, we could assume that the evidence of Dr McClelland, which they received, was the same as in the letter of 8 November from which I have quoted. It is to be remembered that the Employment Appeal Tribunal has been given no medical evidence to suggest that Mrs Warden is, or has been, a disabled person within the 1995 Act.

[40]On 16 November, the Respondent's solicitors wrote to the Employment Appeal Tribunal resisting any adjournment. On the same day, 16 November, the Employment Appeal Tribunal indicated that the hearing of 21 November would proceed but that the adjournment application would be dealt with as the first business of the day. It was added as follows:

"Preparation for the hearing of 21 November should not be on the assumption that an adjournment will be granted. Any further medical evidence to be ruled on is to be sent to all parties by 11 am on 20 November 2001."

[41]On 19 November, the Chairman of the Employment Tribunal, having been sent further papers, with a certain wryness added this observation:

"It is now 6 years since the hearing took place and the passage of time has done nothing to improve my memory of the detail of the hearing. I am pleased to say that Ms Ashtiany's affidavit [and that is the one to which I have already referred, but from which I will be later quoting] supports my recollection as set out in my earlier letter of 4 October 1996."

[42]On 19 November, the same day, the DRC in Edinburgh wrote a letter, only marginally short of being offensive, but based, as it seemed, on an assumption that Mrs Warden was a disabled person and that the Employment Appeal Tribunal was being unreasonable. It said:

"Given your refusal to grant Mrs Warden's request for an adjournment and your failure to justify this refusal you do not appear to be meeting your obligations under the Act." - which was the Disability Discrimination Act 1995. On 19 November, it was indicated to the Respondent and to the Disability Rights Commission that there had been no finding that Mrs Warden was a disabled person, and that the EAT could not assume that she was, saying: "…..the EAT cannot assume she is disabled merely because one recent and so far uncontested medical opinion says so"

In fact that is wrong. Dr McClelland does not say that, nor has Dr Withey, so far as the Employment Appeal Tribunal knows, said that either. And so the hearing for today has come about.

[43]On 20 November, Mrs Warden sent a letter and five separate items said to be relevant to today's hearing, and this morning we received the ten pages or so of fax which we have read, and they have been taken into account.

[44]So much for that chronology. It by no means includes all the very many communications to and from Mrs Warden over a period, but we hope that it gives an adequate picture for the purposes of deciding what to do next.

[45]It is emphatically necessary to keep in mind that the only question on the appeal proper is as to whether, in relation to a claim that it was just and equitable to extend time in respect of a late claim of sex discrimination, there was procedural error on the Employment Tribunal's part, consisting of Mrs Warden not being permitted to address the Employment Tribunal on 23 October 1995 with further evidence or further argument. Affidavits have been collected, as will have been apparent from the chronology, from Mrs Warden, on one hand and Ms Ashtiany on the other. We have the Chairman's response and observations of the lay members, and we have the Chairman's response to Ms Ashtiany. We have in mind the procedure set down by the Employment Appeal Tribunal in the case called Facey

[2000] IRLR 812

[46]At this point, we have to turn to what the evidence says as to the conduct on 23 October 1995. I hope to have dug out all the references made in the course of her affidavit by Mrs Warden that are relevant. In her paragraph 8 of the affidavit she says:

"….For the second point due regard was not paid to the nature of the claims under the Sex Discrimination Act, nor was time taken as having begun to run from when the cause of action crystallised. The latter date was well within the three month limit, and therefore the discretion of the tribunal need not have been required. The respondent made inaccurate statements about both of these matters which I tried to correct, offering evidence, but I was not permitted to be heard."

A little later, in paragraph 12:

"….if the tribunal had been conducted properly and I have been permitted to defend the evidence with available documentation, the decision would have been different."

In paragraph 20:

"……The manner in which the hearing was conducted was initially very proper but after the lunchtime break it became abruptly very unpleasant, and disturbing"

A little later:

"….My sense of outrage was immediate - and expressed at the hearing."

In paragraph 23:

"……I had evidence with me at the tribunal hearing of the assistance offered by the EOC but was not permitted to demonstrate it."

In paragraph 38:

"…..As described later I was not permitted to demonstrate any of the correspondence or evidence about my level of assistance or what it might have been reasonable for a person of my standing to have known. The tribunal simply ignored the matter and accepted without question the interpretation of fact and law put forward by the representative for the respondent"

In paragraph 48:

"…..I was not allowed to defend myself or to offer the evidence and witnesses which would be required."

In paragraph 53:

"To my considerable surprise I was asked to speak again immediately after lunch"

In paragraph 57:

"At the end of this address the Chairman started to close the proceedings, indicating that the tribunal would retire and give a verbal decision. I said immediately that I wanted to speak again to defend myself from new assertions and did not think that the matter was concluded at all. The Chairman stated that I had already had a chance to say what I wanted and that the tribunal had finished hearing submissions. I insisted that I could respond to the new points and had documentary evidence with me which would support my version of events. The Chairman allowed me to state that the advice I had had from the Equal Opportunities Commission had been minimal, and extended to an equal pay claim only, with no mention of sex discrimination." and a little later: "

He was not willing to look at the letters I had brought to confirm the point about the EOC " In paragraph 61:

"……..There seems, however, to be little excuse for hearing an applicant who tries to refute new assertions made by the representative of their employer."

In paragraph 63:

"One particular point on which I was prevented from giving evidence was the assertion by the representative, repeated by the Chairman in the section on the reasoning by the tribunal, that it might do the respondent injustice to be "faced with the task of justifying their position as it was during a contract which clearly terminated 14 months ago." "

[47]Well, that is Mrs Warden's version of events of the day, and against that we have the affidavit of Ms Ashtiany. She says, in her paragraph 3, at our page 182: - " I should say at the outset that I have no recollection of the Appellant experiencing any difficulty in presenting her case at the Tribunal hearing, nor did she at any time seek additional time in order to present or marshal her argument. On the contrary she appeared to be well prepared for both of the issues with which the Tribunal dealt on that day." Paragraph 11 says:

"11 The evidence was concluded at 12.50 when there was a break for lunch. Although the notes do not record it, I believe that the Chairman indicated he would hear submissions straight after lunch and confirmed the parties had copies of the authorities. I also think I recollect that he gave us a slightly longer lunch break to prepare, which is borne out by the fact that we were not recalled until 2.10 pm. 12 At the resumption of the hearing, the Appellant was invited to make her submissions."

And then the notes are produced "As the notes show, the Appellant made what submission she considered appropriate both on the factual issue of the date of termination of her employment and the issue of whether the Tribunal should extend time to permit her to proceed with a late application under the Sex Discrimination Act. 13. The notes at pages 27 - 28 of "SA1" record the course of events after the end of my submissions. As can be seen, the Appellant resumed her evidence about the end date of her employment and on no other topic. She continued to give evidence about what the appropriate end date should be taken to be taken to be and there is a dialogue between her and the Chairman recorded specifically on this one point. From the notes it is evident that the Appellant was seeking to re-present her views about what the Tribunal should conclude was the effective date of termination. The exchange was concluded by the Appellant asserting that she had not agreed a date with her employers and that the effective date of termination had therefore still not been resolved. 14. Whilst my own recollections cannot now be crystal clear, they accord with the contemporaneous notes. It was my impression that the Appellant was keen specifically to stress her views about how the Tribunal should approach the issue of her termination date, re-emphasising information that she had previously provided either during her opening submission, or in her evidence on oath, or during her final submissions. She was entirely composed throughout the proceedings. She appeared to understand fully the significance of the issues raised and to consider herself well prepared to meet them. In particular, I have no recollection of the Appellant being prevented from raising new arguments in reply to points made by me." And in paragraph 16, Ms Ashtiany says:

"I note the Appellant's assertion …..that the character of the hearing changed after lunch time becoming "very unpleasant and disturbing"

. Nothing in my recollection of the hearing supports that description. The Appellant goes on to say that "my sense of outrage was immediate - and expressed at the hearing". I can categorically confirm that I have no recollection of the Appellant's "sense of outrage" at the proceedings and absolutely no recollection of her expressing any disquiet or concern at all. Her demeanour and presentation was to the contrary as I have attested herein." In paragraph 18:

"The point of my submission was that the Appellant was an intelligent person who from the beginning of her employment was raising concerns about what she perceived as sex-based discrimination and taking appropriate advice. She also knew the time limits for complaints. There was therefore nothing to stop her from bringing all her complaints timeously and much prejudice to the Respondent if she were permitted to add new complaints at this late stage."

So, plainly, there is a head-on conflict on the evidence between what Ms Ashtiany was saying and what Mrs Warden was saying.

[48]The Chairman's comments, we mention, had been obtained earlier, as had some observations of the lay members. The Chairman, in a letter of 4 October 1996 had said, inter alia :

"I am sure that, at no stage, did she [ that is Mrs Warden] raise any objection at the speed at which she now claims the proceedings were being conducted. My recollection is that although the Applicant was obviously disappointed at our decision, the proceedings were conducted in a civilised and dignified manner by both parties. I would certainly refute the suggestion that she was not afforded every reasonable opportunity to present her case and her arguments. As far as I can now recall, she gave me no reason, by word or deed, to think otherwise."

The lay member, Mr McDonald said on 24 February 1996:

"As we were sitting Mrs T C Warden was given full licence to put her points forward….. At no time during the hearing was the applicant denied the opportunity to raise any matter relevant to this issue"

He wrote further, in similar terms, on 8 September 1996 to say:

"The appellant was given every opportunity to put her case before the Tribunal. At no time during her evidence in chief was she refused permission to produce documented evidence to support her claim……… After hearing Ms Ashtiany's submission for the respondents, Mrs C T Warden asked if she could take issue with the submission. The chairman asked if there was anything that was said during the submission that had not been covered during her evidence in chief. It was apparent to the Tribunal that it was her intention to repeat her evidence and challenge the submission of Ms Ashtiani. A brief discussion was held between the Chairman and the lay members of the tribunal, and it was felt that it would serve no purpose to hear a repeat of the evidence and her request was refused. We then retired to discuss the merits of the case…."

And the other lay member, Mrs Ratcliffe, wrote on 12 September 1996:

"Only the matter of a claim under the Sex Discrimination Act remains relevant, whether it was within time or could be heard by the exercise of discretion. I do feel there is a possibility that, in the totality of the issues raised, this may not have received clear and separate attention by the Tribunal. The Chairman most definitely gave the applicant every assistance to be heard, to understand the proceedings and to question during the conduct of the Tribunal, but I do see that the summing up by Ms Ashtiany and the response by the Chairman may have appeared very 'cosy' to an unrepresented applicant. In an ideal world a recapitulation by the Chairman in lay terms may have been helpful to Mrs Warden. However, I did then, and do now, support the decision that it would not be just and equitable to allow the matter to proceed."

[49]Broadly speaking, the Chairman and lay members' observations more support Ms Ashtiany's version rather than Mrs Warden's, in particular, emphasising that there was no shutting out of new argument, only of repetition, and that there was no shutting out of any evidence during evidence in chief. There seems no mention of any outrage having been expressed, nor any ill-feeling or hostility after the short adjournment.

[50]So we have conflict on the evidence. We cannot decide simply on a head count of deponents, how many on this side, how many on that, but, of course, if we did, it would not assist Mrs Warden. Nor can we discard evidence simply on a basis of status or of a preference for a particular status, preferring, let it be said, the Chairman and independent lay members and a solicitor, as officer of the Court, as against Mrs Warden. That is not a basis of decision that is open to us, although, of course, if it was , it would not assist Mrs Warden.

[51]Given the conflicts that do exist, the only way of being sure which version of events to prefer - broadly speaking Warden or Ashtiany - would be to arrange the cross-examination of both, and perhaps cross-examination of the articled-clerk note taker. Without such cross-examination there is no sufficiently reliable basis on which to prefer any one side to the other.

[52]However, if we were now to adjourn the case for six months consistently with Dr McClelland's view, the case could not come on before the Employment Appeal Tribunal, earlier than May 2002. Indeed, as Listing already is in place until June or July, there would be unlikely to be a hearing until July 2002. By then, the events of 23 October 1995 would be six years and nine months old. If the appeal were to succeed, there would have to a remission, and then that would be looking into events even older, and moreover, looking back from a yet further future date.

[53]Dr McClelland's medical view, it is to be remembered, speaks of Mrs Warden having memory problems, and that medication had been reducing her level of functioning. There is therefore some reason to doubt how reliable cross-examination could be of events that are so long ago already and in the circumstances that already medication and medical considerations might be impairing Mrs Warden's performance.

[54]But, more importantly, perhaps, than that, the pattern in this and in other cases brought by Mrs Warden has been that as hearings approach, despite her ability to produce reams of typing down to the last minute, Mrs Warden has not infrequently sought adjournment, not uncommonly on medical grounds. There would seem to be a cycle of stress - and I am using that term not as a medical man, but simply as a layman - associated with impending hearings. Such a likelihood of recurring stress as hearings draw near is not in any way disproved by Dr McClelland's observations. We have to consider a real likelihood of there being anxiety and stress or of some lowered capacity on Mrs Warden's part as likely to recur whenever a hearing draws near. Such stress or incapacity might recede after a hearing is adjourned or completed but there is no certainty, as a fresh hearing approaches, that the clinical depression or other lowered form of functioning will not re-occur.

[55]So far there has been no threat of cross-examination. It seems to us that the possibility of Mrs Warden being cross-examined at a hearing could only exacerbate her stress. It will be remembered that Dr McClelland spoke of the depressive illness as a direct result of her current situation, which would seem to refer to the imminence and currency of proceedings and also made reference to there being a real risk of relapse in the future if unreasonable pressure was brought to bear during her recovery phase.

[56]Mrs Warden has, in the past, explored seeking representation, to no avail, so far. We cannot expect her to obtain now that which she has been unsuccessfully striving for in the past. Her husband says in today's material that he expects to be able to provide some assistance to her in the future but we cannot see it as being likely significantly to reduce the anxiety which proceedings, and, in particular, cross-examination, would be likely to cause her. Even after six months allowed for recovery, Mrs Warden's medical difficulties could not be said assuredly not to recur, at the end of that six months, as a fresh hearing loomed.

[57]In the circumstances, we cannot be sure even if, as is unlikely, memories are unimpaired in relation to old events, that there will ever be a time when Mrs Warden will be able, safely, to give good account of herself and to tender herself for cross-examination.

[58]The extremely unattractive position is thus arrived at in which an adjournment is sought in order that the appeal can take place but that we cannot at all be sure that the appeal could take place, in the way that it would need to, at the end of six or any other period of months, namely with a cross-examination of Mrs Warden, and, as is not unlikely, a cross-examination by her. There is a real risk that any adjournment would be likely to have served no purpose at all.

[59]Justice requires us, of course, to take account not only of Mrs Warden's position but also that of the Health Authority and to adjourn to no purpose at all would plainly not be a fair thing to afflict upon the Health Authority. Ms Ashtiany, rightly, stresses the need for finality in litigation.

[60]Accordingly, dealing with the first matter before us, for the reasons we have given, we refuse an adjournment. Ms Ashtiany has also addressed us on the merits. As all that was allowed to go forward by Mr Justice Mummery's Decision was the procedural conduct of 23 October 1995, we have not gone in any detail to Ms Ashtiany's Skeleton Argument but it is plainly the case that a good argument can be made that, on the merits, the appeal anyway would have little or no chance of success.

[61]However, on refusing the adjournment, the position is that we cannot hold, on the evidence, that there was procedural error on 23 October 1995. The evidence for it is no stronger than the evidence against it. On the balance of probabilities, procedural error is not proven and, for the reasons we have mentioned, is unlikely ever to be capable of being proved.

[62]We have in mind the various authorities of which Mrs Warden has sent us copies at various stages of the chronology but we have not seen them materially to affect the approach which we have taken. Mrs Warden has not proved her case, the only matter in issue, namely as to whether there was procedural error of the kind described on 23 October 1995.

[63]Although we have a good deal of sympathy for Mrs Warden's position we have, therefore to dismiss the appeal. We can only hope that, when the incubus of these proceedings has been shaken off her, Mrs Warden will be able to make a recovery to what Dr McClelland called her "pre morbid health state" and to be restored to the role which her high qualifications could be expected to be able to lead her to play.

[64]Amongst the recent papers from Mrs Warden was an application that if we declined an adjournment, or if we dismissed her case (on the merits or otherwise) she wished to seek leave to appeal. We refuse leave to appeal.