MR P MARTIN v BLACKPOOL BOROUGH COUNCIL [2002] UKEAT 1098_02_1612

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1098_02_1612Case No Appeal No. EAT/1098/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P MARTINAPPELLANTBLACKPOOL BOROUGH COUNCILRESPONDENT
Before
His Honour Judge J McMullenDate 16 December 2002
[1]APPEARANCES For the Appellant MR P MARTIN THE APPELLANT IN PERSON AND MR B J DOUGHERTY (Lay Representative) JUDGE J McMULLEN QC : This hearing is conducted pursuant to Rule 3(10) of the EAT Rules. The Registrar has made a decision that no further action should be taken on the Applicant's appeal, since it discloses no area in which the EAT has jurisdiction, pursuant to Rule 3(7).[2]The Applicant is dissatisfied with that decision and, therefore, has a right under Rule 3(10) to have the matter put before a Judge. The facts in relation to this case can be stated only tentatively, by reference to the pleadings, and so what I say should be regarded with that caveat in mind.[3]The Applicant was born on 12 November 1938. From November 1981 until the middle of 2000 he was engaged as an ambulance driver / attendant at Crichton House, which is a local authority residential care establishment run by the Social Services Department of the Respondent, for severely disabled people. He was given early retirement on the grounds of ill-health but made a number of complaints about the way in which that came about and was handled. He also contended that his claim was brought on the grounds of ill-health, in that he suffered from stress caused by his working environment. He claimed loss of earnings and failure by the Respondent to carry out its own rules of procedure which deal with employees who have become disabled. The Originating Application was presented on 16 August 2000.[4]By a Respondent's Notice, presented on 8 September 2000, the Respondents admitted that it had dismissed the Applicant on 27 May by way of early retirement, owing to the Applicant's continued ill-health. He had been absent from work for almost two years by that time, due to a hernia and, notwithstanding surgery, he had been unable to return to work.[5]The Applicant had requested early retirement and he was seen by Occupational Health Physicians and, pursuant to a recommendation by that team, his retirement was recommended. The Respondent denied that his ill-health was caused or aggravated by his working environment and it denied unfair dismissal.[6]I have been told that a number of directions were given by the Employment Tribunal in Liverpool, leading to a hearing over five days in January 2002. In order to prepare for that hearing, Orders required exchange of witness statements by a much earlier date. On 18 December 2001 the Applicant was examined by a Consultant Psychiatrist, Dr Thomas in Manchester. His report was written on 3 January 2002. It was presumably despatched to the Respondent at that time, but it was not dispatched to the Applicant. With the hearing looming on the 14 th the Applicant entered into negotiations under the aegis of an ACAS Officer and on 10 January 2002 an agreement was reached. The hearing was vacated, no one attended, and a Chairman signed an Order as follows:
"The Conciliation Officer having taken action under the statutory powers and terms of settlement having been reached between the parties, by consent the Originating Application is hereby stayed."
[7]That decision was sent to the parties on 4 February 2002. The report of Dr Thomas was made available to the Applicant on 16 January. He tells me that it is a fair report and would have assisted him, notwithstanding, as he put it, Dr Thomas had his fees paid by the Respondent.[8]Mr Martin's case is that he would not have entered into the settlement under the auspices of ACAS if the Respondent had complied with the directions of the Liverpool Tribunal for the exchange of witness statements, including Dr Thomas's. The Registrar has jurisdiction to take a decision that no further action be taken where there appears to be a want of jurisdiction. On 20 March 2002 the Tribunal in Liverpool wrote to the Applicant, saying this:
"This was referred before a Chairman of the Employment Tribunal, Mr Homfray-Davies who states: since a decision has been promulgated by the Tribunal and since you do not seek a review of that decision, the functions of this tribunal have been concluded and we cannot assist you with your complaint."
[9]The Registrar decided that the Applicant's Notice of Appeal did not identify any error of law. She said:
"The Appellant is seeking to appeal correspondence from the Employment Tribunal dated 20 March 2002. This is not a decision of the Employment Tribunal and therefore no appeal lies against it."
It seems to me that the Registrar has made a correct decision. I have looked at this afresh and had the advantage to hear from Mr Martin, assisted by his friend. The real complaint is that he entered into an agreement before he had a copy of Dr Thomas's report. I pointed out to him that he was not, as he put it, being steamrollered by the failure of the Respondent to deliver Dr Thomas's report. Since, as he engagingly put it, he had observed every rule and direction of the Tribunal, he did not see why the Respondent should be able to get away with it before the Tribunal. He is, of course, right. In my judgment he would have had an impregnable case had he turned up at the hearing as scheduled and told the Tribunal precisely what he has told me: that is, the Respondent failed to observe the directions and the hearing could not go ahead in fairness because he had not had a copy of the doctor's report and he would need time. The consequence of that would be that the hearing would be adjourned and if costs had been incurred by or on behalf of Mr Martin, he would no doubt have been able to recover those. He did not however take that step. He decided to accept the settlement offer made through ACAS four days earlier. I do not know what that settlement involved, whether it was a good settlement or a bad settlement objectively but I do know that since there is no criticism of the ACAS Officer, discharging his or her functions, that there can now be no reopening of that settlement.[10]The appeal by Mr Martin raises no point of law and, although I have considerable sympathy with his complaint that he was treated badly by the Respondent in its failure to abide by the Tribunal's Orders, it is not a matter which sounds as an error of law and, therefore, I will stay these proceedings. No further action is to be taken in it.[11]On 24 January 2003 I was handed a letter dated 19 December 2002 which the Applicant had written to me. I have treated this as an application to Review under Rule 33. The only ground seems to be that the interests of justice require it. I have looked carefully at what the Applicant says, which is essentially the complaint advanced before me and the Registrar. I see no ground for a Review.