MS F AHMED v LONDON BOROUGH OF HACKNEY [2002] UKEAT 1221_00_0103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1221_00_0103Case No Appeal No. EAT/1221/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS F AHMEDAPPELLANTLONDON BOROUGH OF HACKNEYRESPONDENT
Before
His Honour Judge Peter Clark Mr P DawsonDate 1 March 2002
[1]APPEARANCES For the Appellant MS F AHMED (In Person) For the Respondent MR P EPSTEIN (of Counsel) Instructed By: Messrs Akainyah & Co Solicitors 308 Seven Sisters Road London N4 2AG JUDGE PETER CLARK: This is an appeal by Ms Ahmed, the Applicant before an Employment Tribunal sitting at London (Central), chaired by Mrs J R Hill, on 8 August 2000, against that Tribunal's remedies decision, promulgated on 16 August 2000, in respect of the same Tribunals liability decision promulgated with very full reasons on 23 November 1998, following a hearing and deliberations occupying a total of 12 days commencing in February 1998.[2]The Appellant, a black woman of Arab origin, was employed by the London Borough of Hackney in the Education Department from September 1989 until her dismissal by letter dated 2 March 1998. During that employment she presented two complaints to the Tribunal against Hackney and her line manager, Mr Moore, under the Race Relations Act 1976 .[3]Following dismissal she presented a third complaint against Hackney only alleging Unfair Dismissal. All three complaints were heard together by the Tribunal, on the issue of liability only, during 1998. By their liability decision the Tribunal dismissed all complaints under the 1976 Act, but upheld the complaint of Unfair Dismissal. Reduced to essentials, the Appellant was disciplined for alleged theft of documents from Mr Moore's desk on 24 May 1996. She was suspended on pay on 21 June 1996 and a notice of complaint was issued on 9 August. A local officer hearing before a Mr Dawson took place over five days between November 1996 and 21 February 1997. It seems that at that stage Mr Dawson concluded that the Appellant was guilty of gross misconduct for which the appropriate penalty was dismissal.[4]The Tribunal would have found, had dismissal then taken place, that such dismissal was fair (liability reasons, paragraph 60). However, Mr Dawson, having taken advice, decided to await the outcome of the Appellant's appeal to members of the Council against the rejection of her earlier grievance raised against Mr Moore. That appeal was not heard until 3 February 1998. Thereafter the Appellant was dismissed by letter dated 2 March 1998. The Tribunal found the unfairness to lie solely in the delay in notifying the Appellant of the dismissal decision. It put a great deal of unnecessary stress onto her. In the meantime, she had been suspended on full pay and thus suffered no loss up until the effective date of termination.[5]Against the liability decision, she appealed to the EAT (EAT 120/99). That appeal was dismissed at a Preliminary Hearing held before a division presided over by Mr Justice Lindsay on 20 October 1999. It is apparent from the President's judgment delivered on that occasion that the main thrust of the appeal, conducted by Mr Panton of Counsel on behalf of the Appellant, he having appeared on her behalf for all but the first four days of the hearing below, was directed to the complaints brought under the 1976 Act. However, it is clear from paragraph 7 of the judgment that the EAT considered and rejected a contention that the Tribunal was wrong to find that the dismissal was solely procedurally and not also substantively unfair. An application for permission to appeal against that decision has, we are told by Ms Ahmed, been dismissed by the Court of Appeal.[6]In their remedies decision, presently under appeal, the Tribunal acknowledged their earlier finding of procedurally unfair dismissal, but apparently did not consider that since the dismissal would on their findings, have been fair in March 1997, no loss had been suffered by the Appellant when she was dismissed one year later, having received her full pay in the meantime. Mr Epstein, correctly we think, has explained that there is no cross-appeal in this case, on the basis that it was not until the date of her dismissal that the Appellant could be expected to begin to look for alternative work.[7]Instead they approached compensation in this way. First they made a basic award, applying the statutory formula. As to the compensatory award, they considered the Appellant's case that the manner of her dismissal had an adverse impact on her health which meant that, due to incontinence, tremor and loss of confidence she was unable to present well at job interviews and failed to obtain employment. Over the two years prior to the remedies hearing in August 2000 the Appellant had earned a total of £10,000. She had not applied for Social Security benefits. At the time of her dismissal in March 1998 she was earning with the Respondent about £22,000 per annum gross, according to her final Originating Application. The Tribunal rejected that contention for three reasons:(1) the Appellant had adduced no medical evidence in support of that case(2) in May 1998 her original representative, a retired Trade Union official and academic, was taken ill but she was able to take over the conduct of her case until new advisors were appointed without difficulty(3) she had made no reference to suffering ill health in her witness statement prepared for the liability hearing in October 1998 dealing with the manner of her treatment at the hands of the employer. In these circumstances the Tribunal determined that she ought to have obtained alternative employment at the end of four months following her summary dismissal in March 1998 and limited her loss of earnings attributable to the unfair dismissal to that four-month period.[8]The present appeal (EAT 1221/00) came on for preliminary hearing before a division presided over by Mr Justice Charles on 4 May 2001. On that occasion she was represented by Mr Laddie of counsel, instructed by the CRE. The appeal was permitted to proceed to this full hearing with both parties present on the following grounds, set out in an Amended Notice dated 24 May 2001. "In reaching a finding of fact that the Appellant was not suffering any physical handicap brought about by the manner of dismissal, the Employment Tribunal took into account two matters not brought to the attention of either of the parties:(a) that the Appellant's statement prepared for the original liability hearing did not include any reference to the manner of dismissal causing any health problems;(b) that within two months of the dismissal, the Appellant had taken over conduct of her Employment Tribunal case and corresponded with the Tribunal, thus disclosing (according the Employment Tribunal) that the Appellant "was able to communicate and conduct her affairs properly". It is submitted that by denying the Appellant the opportunity to comment on two matters that the Employment Tribunal plainly considered important, the Employment Tribunal reached its decision in breach of natural justice."[9]On 12 September 2001 CRE wrote to the EAT, informing the court that they were no longer representing the Appellant and asking that all further correspondence be directed to her personally. On 13 September the Registrar wrote to the Appellant informing her that the appeal was listed for a full hearing today, 1 March 2002 and asking her to write saying whether or not she intended pursuing the appeal, that indication to be given within seven days. No reply has been recorded as having been received by the EAT from the Appellant, until on 21 February she wrote seeking a postponement of today's hearing and enclosing a copy letter to the EAT dated 22 December 2001, also seeking a postponement of today's hearing. The original of that letter has not been recorded as received here and no follow up enquiry was made by the Appellant prior to the 21 February.[10]That application was opposed by the Respondent on paper and the Registrar directed that the postponement application be refused. Today, Ms Ahmed has renewed her application for a postponement before us. She submits that she was not made aware by the CRE that representation had been withdrawn until December 2001. She then wrote promptly to the EAT seeking a postponement of this hearing fixed for today. When she heard nothing back she assumed that her application had been granted. She accepts that she ought to have followed the matter up with the EAT.[11]When the Respondent's solicitor wrote to her in relation to an exchange of skeleton arguments on 18 February, she then realised that the hearing was to go ahead today; she had earlier received an index and set of the documents in the EAT bundle under cover of a letter dated 23 January, but had not appreciated their significance. Meanwhile she tells us that she has visited the Ealing Racial Equality Council three times, on one occasion seeing experienced counsel in the field, Ms Karon Monaghan and has sought advice from the Citizens Advice Bureau. The present position is that she wishes to instruct solicitors to take counsel's opinion with a view to having representation in this appeal, she asked for an adjournment of some four to six weeks.[12]Mr Epstein on behalf of the Respondent opposes the application. He submits that on the Appellant's account she has had ample time since 22 December 2001 to instruct new representatives, knowing of this hearing date. This is an old case. The Respondents are present and ready to proceed. It is the Appellant's responsibility to arrange her own representation. There is no guarantee she will obtain representation even if an adjournment is granted.[13]We refuse the Appellant's application. It seems to us surprising if, as Ms Ahmed tells us, the CRE notified both the EAT and the Respondent's solicitors on 12 September 2001 that they had ceased acting, without telling the Appellant herself. It is strange that she did not receive the EAT's letter of 13 September. It is a further misfortune that the EAT did not receive her letter of 22 December; but even in these circumstances we accept Mr Epsteins submission, that the Appellant has had sufficient time to arrange alternative representation since shortly before Christmas 2001. We must do justice to both parties. The Respondent is entitled to finality in these proceedings, as is the Appellant. Further, the point in this appeal is a short one, fully articulated in the judgment of Mr Justice Charles and in the amended grounds of appeal settled by Mr Laddie and set out earlier in this judgment. We are well used to hearing litigants in person and to affording such assistance as is appropriate. On balance, we consider that the interests of justice require this case to proceed. We so directed, allowing the Appellant the usual one hour short adjournment in which to prepare herself.[14]The question in the appeal is whether the Tribunal's admitted failure to put to the parties the second and third factors which led them to conclude that she had failed to make up that causative link between her stated medical condition and her failure to obtain alternative employment amounted to a breach of natural justice such as to vitiate the remedies decision. As to the principles to be applied we have ourselves considered the EAT decision in Laurie v. Holloway [1994] ICR 32 and Mr Epstein has referred us to the general statement of principle to be found in the judgment of Lord Justice Ralph Gibson in Hereford and Worcester Council v. Neale [1986] IRLR 168, where he said at paragraph 54:
"In general I agree with the view expressed by the EAT as to how a tribunal should treat and assess matters which they regard as important but which the applicant or his representative has either not mentioned at all or has apparently treated as of little importance. It is however necessary to add that it would be unwise and potentially unfair for a tribunal to rely upon matters which occur to members of the tribunal after the hearing and which have not been mentioned or treated as relevant without the party, against whom the point is raised, being given the opportunity to deal with it unless the tribunal could be entirely sure that the point it so clear that the party could not make any useful comment in explanation."
In addition, Mr Epstein has referred us to two recent EAT decisions, Eltech (UK) Ltd v. Thomson [2000] ICR 689 and Albion Holtel v. Maia E Silva [2002] IRLR 200 .[15]No absolute rule emerges from the cases. The question here is particularly fact-sensitive. Our conclusion is that on the facts of this case the primary reason for the Tribunal's finding that the Appellant had not established a causative link between her stated medical condition and her inability to obtain fresh employment was the total absence of medical evidence. Not only was her medical condition not documented by way of medical notes, more importantly, there was no medical opinion supporting the causative link asserted by the Appellant. On this basis alone it seems to us, her argument failed. In that sense the two further findings, based on historical facts in the litigation, whilst supporting the Tribunal's primary finding based on the complete absence of medical evidence, were not new points in terms of the issues ventilated before the Tribunal at the remedies hearing.[16]It is now too late for the Appellant to plug that evidential gap, applying the well-known Laddie v. Marshall principles. There are no grounds for admitting fresh medical evidence, which could have been adduced before the Tribunal in this appeal, even if the Appellant had obtained such evidence. Wileman v. Minilec Engineering [1988] ICR 318.[17]In these circumstances it seems to us that there has been no material breach of natural justice such as to undermine the Tribunal's conclusion in their remedies decision. Accordingly this appeal must be dismissed.