MRS T C WARDEN v ANGLIA & OXFORD REGIONAL HEALTH AUTHORITY [2001] UKEAT 68_96_2205

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 68_96_2205

Case No Appeal No. EAT/68/96

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS T C WARDENAPPELLANT

ANGLIA & OXFORD REGIONAL HEALTH AUTHORITYRESPONDENT

Before

Mr Justice Lindsay

Date 22 May 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MR S ASHTIANY (Solicitor) Messrs Nabarro Nathanson Lacon House Theobald's Road London WC1X 8RW THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) I have before me, for directions only at this stage, the matter Mrs T C Warden v Anglia & Oxford Regional Health Authority. This particular matter is, in EAT terms, marked

EAT/68/96

. It needs to distinguished from other appeals that are being conducted either by Mrs Warden under that name or by her under her maiden name, Teresa von Goetz.

[2]Today Mrs 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 definately [definitely is spelt wrong] 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."

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 taken and it comes as something as a shock to realise that what is being talked about are complaints in relation to an employment that ended on 26 August 1994.

[4]On 28 February 1995 (it might be 26 February 1995) Mrs Warden presented an IT1 for equal pay, sex discrimination and "pension". That matter went to the Employment Tribunal and on 23 or 26 October 1995 there was a hearing and extended reasons were sent to the parties on 7 December 1995. Her claims for sex discrimination, equal pay and pension were all dismissed.

[5]On 18 January 1996 Mrs Warden appealed to the Employment Appeal Tribunal and the matter came before Mr Justice Mummery, as he then was, on 18 March 1996 for a Preliminary Hearing here at the EAT. Only one matter was directed to be able to go forward to a Full Hearing at the Employment Appeal Tribunal and that one issue was whether the Employment Tribunal had properly exercised its discretion not to extend the time limit for the sex discrimination claim. In the course of his judgement on behalf of the panel of three that heard the Preliminary Hearing, Mr Justice Mummery said this:

"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."

The judgement continued to direct Mrs Warden to swear an affidavit giving details of what she said were the irregularities in the procedure of the Tribunal with a view to the comments of the Chairman being obtained once that affidavit was to hand. An affidavit was sworn by Mrs Warden on 14 August 1996 and on 4 October 1996 the Chairman's comments were received relative to that affidavit. The chief point that seemed to be made in the affidavit was that Mrs Warden had been cut short in reply, so to speak, and the Chairman commented that he had no recollection of that having occurred. The two lay members who had sat with the Chairman at the Employment Tribunal also wrote on the subject and their views are available.

[6]On 6 November 1996 the Respondent Health Authority entered its Respondent's answer saying that there had been no procedural error but, in the meantime, Mrs Warden had sought to appeal to the Court of Appeal against Mr Justice Mummery's order. On 11 March 1997 Lord Justice Hurst gave leave to appeal. On 10 May 1999 an agreement was arrived at between Mrs Warden and the Health Authority under which the appeal was to be dismissed by consent with a provision that Mrs Warden should pay to the Health Authority £2000 costs and, ultimately, that was embodied in an order of 2 June 1999 whereunder the appeal was dismissed by consent with that provision for costs. Accordingly, from the 18 March 1996 at the EAT to the 2 June 1999 in the Court of Appeal, on the face of things the procedure had moved to no avail whatsoever, although quite what had been going on behind the scenes of course, I am not in a position to know.

[7]On 28 August 2000 new grounds of appeal were sought to be added by Mrs Warden. By the 19 January 2001 the matter had been referred to me. A letter was sent to Mrs Warden on that day that said that I had made the following direction namely, that:

"Within 10 days from today [that was 19 January 2001] you 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."

On 7 March 2001 it was made clear that the Health Authority did, indeed, object and hence this directions hearing was fixed.

[8]I have heard Miss Ashtiany on the subject of the directions which the Health Authority would seek and I have read some papers that Mrs Warden has added only today because, with the Doctor's letter that I have already read out, there was a letter of 22 May which I have read. What then, against that background, are the appropriate directions for today? 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. On that particular subject we already have as I have mentioned, the affidavit of Mrs Warden and the Chairman's comments but, as yet, no evidence from the Health Authority. The Health Authority wish to have the opportunity themselves to put in evidence as to the conduct of the hearing at the Employment Tribunal and it is right that they should have that opportunity.

[9]Accordingly I direct that the Health Authority is, within 21 days from today, to serve and file such evidence as it thinks fit in relation to the single topic that the Employment Appeal allowed to go forward on 18 March 1996. Mrs Warden is then to have 14 days after the receipt of the Health Authority's evidence in order, if so advised, to reply to their evidence. It has to be borne in mind that a reply is not the occasion for a totally new matter being raised but it is intended to be directed only to matters that could not have been raised before and, in particular therefore, to whatever answers need to be made to, what in this case, will be the Health Authority's evidence. It is not an opportunity for a total reopening of issues not previously raised.

[10]Turning then to amendment of the Notice of Appeal, the first point that Mrs Warden wishes to raise is what I will call the Rule 6 point. First of all, Mrs Warden seeks to build upon the observations of Lord Justice Hurst when he gave leave to appeal against the order of the Employment Appeal Tribunal. He said:

"…………… secondly whether it is reasonably arguable that there was a procedural error on the part of the IT in that the applicant did not have a fair opportunity of dealing with this point (which is critical to her EPA claim) seeing that it was only raised by the Respondent for the first time three days before the start of the IT hearing when they served their Notice of Appearance. I consider that the latter point, which clearly raises a point of law, is reasonably arguable (NB the EAT's acknowledgement of the possibility of a similar procedural error in relation to the application for an extension of time for the SDA claim). I gravely doubt ………….."

That observation is sought to be developed into an argument under Rule 6 of the Employment Tribunal Rules which provides as follows:

"6 Entitlement to bring or contest the proceedings (1) A Tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, [hear and] determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates. (2) A Tribunal shall not [and one needs to emphasise the words, 'shall not'] determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the Tribunal."

The object of Rule 6(2) is plainly to ensure that the parties can see in advance the nature of the issues likely to be raised and that they are given an opportunity to address them, but one cannot consider the Rule in total isolation. Mrs Warden had not, at any rate with sufficient clarity, raised a sex discrimination act until 29 August 1995, over a year after the end of her employment and some 6 months after her IT1. She was given leave to add Sex Discrimination Act claims on 29 August 1995. I am bound to say that the form in which the leave was given was irregular and unhelpful; it neither had any particular form of amendment before the Employment Tribunal nor did it specify a time within which the amendment had to be made. As events turned out, Mrs Warden did not make the amendment that had been given leave until 5 October 1995. There thus had been a gap from 29 August to 5 October 1995, some 37 days, between granting the leave to make the amendment and the making of the amendment, and the making of the amendment was thus only some 18 days before the date fixed for the hearing.

[11]The Health Authority responded to the amendment on 20 October. They had taken some 14 or 15 days to answer the amendment and it was at that point, on 20 October, that they raised the argument that the sex discrimination act claim was out of time and barred on that account and that it was inappropriate to extend time. Thus, whilst Lord Justice Hurst was, of course, right to say, that the objection was raised only 3 days before the hearing (the hearing beginning on 23 October 1995), the chronology indicates that that was far more Mrs Warden's fault than that of the Health Authority. Moreover, each side addressed the Employment Tribunal at some length on 23 October 1995 and Mrs Warden gave evidence. So far as one can tell, neither side asked for an adjournment nor an opportunity to supplement anything said orally by written argument. In that context, and leaving aside the question of whether Mrs Warden was cut short in reply, no conceivable good would seem to have been served by requiring notice to be sent to the parties under Rule 6(2). The opportunity that the Rule requires to be given was given and the issue was raised clearly enough for each party to deal with it. I emphasised earlier that 6(2) has the word 'shall', and 'shall' is, of course commonly mandatory but sometimes it is merely directory. I am not prepared to hold that when strict compliance with 6(2) could have added no material benefit nor avoided any substantial disadvantage to either side and when the parties thus proceed without adverting to the Rule and not seeking an adjournment that, after the event, a party who had failed to make objection at the time based on the Rule can then invoke the Rule as a point of jurisdiction . In my view the Article 6 argument which Mrs Warden wishes to raise is hopeless and I will not allow amendment of the Notice of Appeal for it to be added at this stage.

[12]The next point that Mrs Warden wishes to raise is as follows:

"For the purposes of a sex discrimination claim for damages resulting from unlawful sex discrimination the time limit for making such a claim is 3 years from the action complained of or from the date of knowledge of the cause of action whichever is the later."

And that on that account the statutory provisions limiting Mrs Warden's sex discrimination act claim to 3 months is, she says, not compliant with European legislation and authority. Now that point was not taken at the Employment Tribunal itself; it was not taken at the Preliminary Hearing at the Employment Appeal Tribunal; it was not even raised in the application to the Court of Appeal. On those grounds alone, it seems to me, bearing in mind that the Employment Appeal Tribunal is not at liberty to allow to be raised points of law where they were not raised at first instance, that the argument is doomed. In any event, in relation to authority, one can see that the argument would present formidable difficulties to Mrs Warden. It seems to me not right to allow that point to be raised at so late a juncture, given the history that I have mentioned, and so I shall not permit that either to be added by way of amendment.

[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. Unhappily, as it seems to me, the Notice of Appeal which I directed to be amended has not taken the shape it should have done and has sought to invoke other matters and raise other arguments, matters that, given the history of the Employment Appeal Tribunal's judgement having been sought to be appealed and the appeal having been abandoned, it would be quite improper to allow. So it will be appropriate for the Employment Appeal Tribunal on the Full Hearing to concentrate only on the single ground which was permitted to be raised and to ignore other grounds, despite their having been mentioned in the amended Notice of Appeal.

[14]The Full Hearing, having regard to observations made by Mrs Warden and also having heard Mrs 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. Skeleton arguments should be exchanged not less than 14 days before the hearing and at that point also they should be sent to the Employment Appeal Tribunal. On Mrs Warden's side it would be appropriate that Mrs Warden should include within her skeleton, in summary form (as Mrs 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. Each side within their skeleton arguments, is to indicate to the other what authorities it or she wishes to rely upon and copies of the authorities are to be exchanged between the parties and the Health Authority should compose a bundle of such authorities as have been so identified by both sides into bundles for the court so that the Tribunal should have in front of it a bundle that includes all authorities likely to be referred to by either side and identified, as I have mentioned, not less than 14 days before the hearing. The matter is to be category B and that, I think, is all I need to say by way of directions today; I shall ask Mrs Ashtiany whether there is any further point that I could usefully deal with today. "No thank you sir"