MS R SINGH v LAMBETH HEALTHCARE NHS TRUST [2001] UKEAT 938_00_1901

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 938_00_1901Case No Appeal No. EAT/938/00 EAT/939/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS R SINGHAPPELLANTLAMBETH HEALTHCARE NHS TRUSTRESPONDENT
Before
His Honour Judge P CollinsDate 19 January 2001
[1]APPEARANCES For the Appellant MS SINGH THE APPELLANT IN PERSON Assisted By: HENRIETTA HILL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE P COLLINS CBE : On 7 April 2000 an Employment Tribunal sitting at London (South) was listed to hear Ms Singh's application alleging that she had been constructively dismissed and unfairly dismissed from her position as a health visitor by the respondents, the Lambeth Healthcare NHS Trust.[2]Ms Singh did not attend the hearing and for the reasons which were promulgated on 13 April her application was dismissed. By a letter dated 20 April the Citizens Advice Bureau at the Royal Courts of Justice on her behalf applied for a review and the chairman's decision on that application was sent to the parties on 2 May. He refused that application. This is the preliminary hearing of Ms Singh's appeal against the refusal to review and against the decision which was taken in her absence.[3]The case has a somewhat substantial history. Ms Singh was a health visitor employed by the Trust between July 1992 and October 1997. It appears as though she was ill from the middle of January 1997 and never returned to work and the history of what happened during that year is set out in the Trust's Notice of Appearance of December 1997. There were many meetings and much correspondence in 1997; there were a number of occupational health meetings and other meetings in 1997 which it is alleged Ms Singh failed to attend and in October 1997 there were further meetings which it is alleged she did not attend. She made her application by an Originating Application dated 29 October 1997 in which she alleged that she had been forced out of her job as a health visitor following sick absence from which she had fully recovered. Her application came on for hearing before a tribunal sitting at London (South) on 30 March 1998. That tribunal promulgated its reasons on 15 April 1998. They held that the applicant, Ms Singh had not been dismissed but, in any event, if she had been dismissed the dismissal had been fair in that the respondents had been patient with Ms Singh over many months and their actions leading up to the dismissal in their words "could not be faulted".[4]Ms Singh appealed against that decision to this tribunal. We have not seen the judgment of this tribunal but in the event the matter was remitted for rehearing and the subsequent procedural history is set out in the reasons of the tribunal promulgated on 13 April 2000 at paragraph 5.[5]The case was originally listed for 30 November 1999 but Ms Singh applied for a postponement of that hearing and her application was granted. It was re-listed on 8 February 2000. That hearing was adjourned because the Trust's principal witness was out of the country and it was re-fixed for 2 March. Ms Singh applied for that hearing to be adjourned on the basis of a medical certificate saying that she should refrain from work for three weeks, although the illness is not specified. The case was not re-fixed.[6]The tribunal decided that it would use the hearing date of 2 March for a directions hearing only. But shortly before that, Ms Singh wrote saying that she was depressed and unable to focus and properly represent herself at that hearing and accordingly, the tribunal agreed to adjourn it until 14 April.[7]Shortly afterwards the tribunal learned that Ms McLoughlin was leaving the country on 18 April going to New Zealand for a year and accordingly they decided to bring the hearing forward to 7 April.[8]There is no doubt that the appellant knew that the hearing was fixed for 7 April. She says in her present Notice of Appeal, "I did not receive notice of proceedings until after the hearing" but that is quite wrong. She knew that the hearing was on 7 April. Her complaint is that before that hearing she had written a six-page letter asking for it to be adjourned and she did not receive notice until after the hearing that her application for an adjournment was being refused, but that she knew that the hearing was due to take place on 7 April is not in doubt.[9]After the tribunal received her letter on 3 April, on 11 March Ms Singh wrote to the tribunal saying that she was unable to represent herself and enclosed a copy of a medical certificate. A regional chairman said that the case was to stay in the list for 7 April.[10]On 20 March the Citizens Advice Bureau at the RCJ wrote saying that counsel had been instructed by the bar pro bono unit. On that date the applicant wrote to the tribunal requesting a postponement until her discharge from sick leave. That was refused on the grounds that the tribunal had to strike a balance between the needs of the applicant and the needs of the respondents, bearing in mind that a principal witness had to leave the country and bearing in mind the great lapse of time that there had already been.[11]I interject to state that the case which the appellant has put before us today is that she had an open certificate and should not have been required to present her case to the tribunal until she was certified as fit. It seems to us that that suggestion that the matter should have been left in abeyance quite indefinitely would not have been just in our judgment to the respondents, nor would it have been consonant with the proper administration of justice.[12]On 3 April the Citizens Advice Bureau faxed the tribunal saying that they had been unable to find counsel to represent her on 7 April and on 4 April a letter was sent to her saying that her application for 7 April hearing to be adjourned was refused. It is that letter which Ms Singh contends that she did not receive until she cleared her post box at lunch time on 7 April, the day of the hearing. Whether or not that is the case seems to us to be immaterial because she knew that the hearing was fixed for 7 April and she had no reason to suppose that her application to alter it had been granted, bearing in mind that it had been refused once before. The tribunal decided as follows:
"At the hearing on 7 April 2000 the Tribunal members were satisfied that the Applicant was well aware of the necessity for the case to proceed prior to Ms McLoughlin leaving the country in mid April 2000 and the reason why the case had been brought forward to 7 April. The Tribunal noted that the Applicant had sent in a medical certificate and that that medical certificate expired on the date of the Tribunal hearing and no further medical certificate had been received."
[13]Miss Singh said that she had faxed a medical certificate to the tribunal. This was one which she obtained from her medical practitioner on 6 April, the day before the hearing, dated by the doctor 6 April, although it is countersigned by her when she collected it, apparently, on 7 April. It is obvious that if she did fax it on 7 April the tribunal had not received it by the time it made its decision because it is not referred to and, in any event, it is only a statement by the doctor that Ms Singh should refrain from work for an unspecified period because of depression.[14]Ms Singh was unable to give us any adequate explanation as to why it had been impossible for the doctor to produce a one-page letter saying that her depression made it impossible for her to cope with a hearing at the tribunal, as opposed to her going to work to look after patients. While one can quite see that depression is an illness, which this tribunal does not underestimate, and might prevent somebody from carrying out work as a health visitor, it does not automatically follow from that that they would be unable to conduct their case in front of a tribunal. It may be or it may not be but the point is that there was no medical evidence placed before the tribunal or before us to substantiate such a contention. The tribunal went on:
"The Tribunal members read the whole of the Applicant's letter of 30 March 2000. The Tribunal members noted the reasons why the postponement request of 20 March had been refused and noted why the renewed postponement request had been refused. The Tribunal was of the view that whatever decision it took there would be a prejudice to one party or the other and the Tribunal balanced that prejudice."
[15]The tribunal exercised their discretion and decided not to adjourn the case. Since the dismissal of the applicant was in contention and the burden of proof was on her to establish she had been dismissed, they dismissed her complaint since there was no evidence to proceed with it. The review hearing was based on the letter from the Royal Courts of Justice Advice Bureau based simply on her absence. Again, there was no expansion on the medical situation and the chairman simply referred to the previous history and said "Nor can a party stay away from a hearing and expect to force a postponement when an application for postponement has been made and refused".[16]Ms Singh has represented herself before us today with some assistance and I repeat that this tribunal does not underestimate the extent to which depression may have a crippling effect on somebody's ability to deal with representing themselves before a tribunal which may be an intimidating prospect for even someone in the best of mental health. But depression is an infinitely variable illness, it varies from the mild to a state of illness which will require hospitalisation for dealing with it.[17]There was simply no medical evidence before the tribunal either on 7 April or when it considered the application for review, nor is there any such medical evidence before us to justify the proposition that Ms Singh was unable to get along to the tribunal and state her case. In the absence of such evidence it seems to us that this appeal cannot begin to get off the ground. The tribunal considered the whole history. They had a discretion to exercise as to whether to adjourn the case or not. They had regard to all the material that was before them, when they considered the exercise of discretion, and no fresh material could not reasonably have been placed before the tribunal has been placed before us to suggest that the exercise of the discretion was wrong.[18]In those circumstances we are bound to hold that this a hopeless appeal and will have to be dismissed.[19]We are going to refuse permission to appeal on the ground that it seems to us an appeal with no prospect of success, depending as it does upon an exercise of discretion which the tribunal, in our judgment, exercised reasonably and with which we can find no fault. Permission refused to appeal which means the appellant can go along to the Court of Appeal and ask them if she wants to.