MRS A BISHARA v BARNSLEY DISTRICT GENERAL HOSPITAL NHS TRUST [2002] UKEAT 207_02_2009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 207_02_2009Case No Appeal No. EAT/207/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A BISHARAAPPELLANTBARNSLEY DISTRICT GENERAL HOSPITAL NHS TRUSTRESPONDENT
Before
His Honour Judge J BurkeDate 20 September 2002
[1]APPEARANCES For the Appellant MR NIGEL GIFFIN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE J BURKE QC This is the preliminary hearing of the appeal of Mrs Bishara against the dismissal of her unfair dismissal and discrimination claims by the Employment Tribunal sitting at Sheffield, chaired by Mr Williams and set out in a Decision sent with Extended Reasons to the parties on 3 January of this year.[2]The claims were dismissed because they were presented outside the primary three-month time limit which applied to both claims. As to the unfair dismissal claim, which was a claim of constructive unfair dismissal, the Tribunal found that the case was not one in which it could be said that it was not reasonably practicable for Mrs Bishara to have brought her claim within the primary time limit; and in the case of the disability discrimination claim, the Tribunal found that it was not just and equitable to allow the claim to proceed, despite the expiry of the primary time limit. Mrs Bishara appeals against both aspects of the Tribunal's Decision. Mrs Bishara, we should say comes from Egypt, and came to this country in about 1995.[3]The background, very briefly, is that Mrs Bishara's employment came to an end when she resigned on 31 March 2001 from her post as a Senior House Officer in Oral Surgery. The last alleged act of discrimination occurred on 30 or possibly 29 March of that year. However, the Originating Application was presented on 26 July, as the Tribunal rightly said, nearly a month outside the primary time limit.[4]The Tribunal found that Mrs Bishara believed that she had been unfairly treated by the employers from September 2000, and decided then that something had to be done. She spoke about her problem to someone at the British Dental Association, BDA, who asked her to write a letter; because matters did not come to a head until March of the following year; such letter was not in fact written until after her resignation on 28 April. Prior to October 2000, Mrs Bishara was away from work through illness; but the Tribunal found that after that, she was not on any medication other than paracetamol, so that there were no reasons connected with her health why she should not be able to present her application or to obtain advice so as to procure the presentation of such application within the time limits.[5]After Mrs Bishara had written her letter to the BDA, of which she was not a member, she sent them further information, the Tribunal found, in May; but nothing happened either in the way of action or advice from that quarter. On 28 June she decided to see a solicitor; four or five days later she saw a solicitor who said that he was not qualified to advise; but she was given some other names and saw other solicitors on 6 July, by which time, of course, she was outside the primary time limit.[6]The new solicitor told her that she was out of time but that an application should be made on the basis that the Tribunal might be willing to exercise its discretion to extend the time limit; but then, without any apparent explanation, a further nearly three weeks passed before the Originating Application was issued.[7]The Tribunal found, in relation to the unfair dismissal claim and the time limit, that Mrs Bishara's English was good, that she was an intelligent woman, a dental surgeon with a master's degree; her husband was a doctor. In those circumstances it was unreasonable for her to rely on ignorance of the law, i.e. that if she did not know what the law was, she was reasonably capable of discovering it; they found that her medical condition provided no excuse for delay, that she knew from September 2000 that she was being badly treated but did not seek further advice from the BDA until 28 April and did not go to a solicitor until the end of June; and then proceedings were not issued for a further three weeks after she saw a solicitor who thought her to be competent in the relevant area.[8]For all those reasons they came to the conclusion that it was not a case in which it could be said that it was not reasonably practicable to have brought this case in time. In paragraph 4 of their Decision they went on to say that even if they were wrong about that, the application was certainly not brought within such further time as would be reasonable in all the circumstances, there being no explanation at all for the further delay which had occurred after the solicitors, supposedly competent in the relevant area of the law on 6 July, had advised the presentation of an application.[9]So far as the Disability Discrimination Act complaint is concerned, the Tribunal appreciated that they were not considering reasonable practicability but were considering whether it would be just and equitable to allow Mrs Bishara to proceed despite the expiry of the primary time limit. The Tribunal went through a series of factors which led them to the conclusion that it was not just and equitable to extend the time limit and we do not propose to go through all of them for the purpose of this judgment; it would be unnecessary to do so.[10]One of the factors that the Tribunal had in mind, both in relation to the unfair dismissal side of the case and, perhaps more substantially in relation to the Disability Discrimination Act side of the case, was that Mrs Bishara was not a member of the BDA. In relation to the Disability Discrimination Act claim the Tribunal said:
"We cannot believe that it is reasonable for this applicant seriously to think that the BDA would deal with matters of this nature on her behalf"
That is in paragraph 6; and later in paragraph 7 they say:
"….we do not think it was reasonable for her to believe that she could rely on that body given the fact that she was not even a member of it."
[11]The Notice of Appeal sets out four grounds of appeal which are elaborated in the Skeleton Argument. We have considered the Notice of Appeal and the Skeleton Argument in depth. Today Mr Giffin has appeared on behalf of Mrs Bishar under the ELAAS scheme. He has done so wholly voluntarily and by surprise because it was not known to the Employment Appeal Tribunal until this morning that Mrs Bishara was not going to be represented by her solicitors, and had been left to represent herself. It was the Tribunal who suggested that she should see somebody under the ELAAS scheme, Mr Giffin volunteered; and we are extremely grateful to him for dealing with the matter extremely capably and at very short notice.[12]Mr Giffin has focused in particular on one point; although he put it in two different ways, for present purposes it can be seen as one point, and it is this. He submits that the Tribunal misunderstood the nature of Mrs Bishara's complaint to the BDA. We are told that Mrs Bishara's evidence was that she did not go to the BDA on the basis that it was her professional association or as a professional person who was not a member of it, seeking their help as if she were a member of it, but she went to the BDA as a member of the public seeking, as she believed, a member of the public is entitled to do, redress where somebody, who might come within the aegis of the BDA, had behaved in a manner which, allegedly, he or she should not have done.[13]If that were right, then it is, we think just arguable that the Tribunal have mistaken the nature of Mrs Bishara's approach to the BDA. We are not sure that the way in which Mrs Bishara puts it, and the way in which, as we have been told, it was put in her evidence, can be excluded, however unlikely it may seem that she as an oral surgeon would have gone to the BDA as a member of the public.[14]We should say too that we have not seen, although the Tribunal had seen, the letters which passed between Mrs Bishara and the BDA which might reveal more clearly what the nature of her approach to them actually was; and if this matter goes for a full hearing, it is manifest that those letters will have to be before the division of this Employment Appeal Tribunal which hears the full appeal, so that insofar as those letter clarify the matter, the point can be seen with greater clarity.[15]So far as the unfair dismissal claim is concerned, it is plain, as we have already said, that the Tribunal put much less emphasis on the position as between Mrs Bishara and the BDA than they did in relation to the Disability Discrimination Act claim. Furthermore, paragraph 4 of the Tribunal's Decision in which they said that even if they were wrong in finding that it was not reasonably practicable to have brought this claim in time, nonetheless, that application was certainly not brought within such further time as would be reasonable in all the circumstances, has the effect, in our judgment, that even if the argument which Mr Giffin has so competently put before us, were to win in this area of the case, nonetheless, Mrs Bishara could not get home and could not avoid the effect of paragraph 4. Mr Giffin says that paragraph 4 has to be seen in the light of the fact that the thrust of the Decision is in paragraph 3, but we do not think it is arguable that there is any way round the effect of paragraph 4; and, therefore, looking at the matter as we must do, taking paragraph 4 together with paragraph 3, we do not think that in relation to the unfair dismissal claim there is an arguable ground of appeal.[16]In relation to the Disability Discrimination Act we take, just, a different view. All three members of this Tribunal sitting here today, on their reading of the papers, did not think that there was an arguable point in law; but we think that there may just be one, and there is enough in it for the point to be canvassed at a full hearing. The Tribunal plainly relied heavily on the fact that Mrs Bishara was not a member of the BDA; and it is possible that if the Tribunal did misunderstand the relationship between Mrs Bishara and the BDA and the way in which she had approached them, that might have made a difference to their overall approach to the just and equitable issue.[17]We turn from that, very briefly, to the other grounds set out in the Notice of Appeal and Skeleton Argument. The second ground in the Notice of Appeal is summarised in the Skeleton Argument as being that the Tribunal erred in equating the BDA with the BMA. The point is that the Tribunal clearly felt that, because Mrs Bishara's husband was a member of the BMA, and presumably paid his subscriptions to the BMA, Mrs Bishara should have realised that she could not expect the BDA to act on her behalf when she was not a member and was not paying subscriptions. If Mrs Bishara did approach the BDA in the manner described in the Tribunal, then this point is plainly unarguable. The Tribunal was entitled to look at her husband's membership of the BMA and to consider that it would have been reasonable for Mrs Bishara to appreciate the importance of membership of a professional association if one wishes to benefit from its services. We do not think that this point adds anything arguable to the point with which we have already dealt.[18]The next point canvassed in the Notice of Appeal is that the Employment Tribunal held against the Appellant certain deficiencies on the part of her former solicitors. There is no arguable point of law there. The Tribunal were entitled to have taken into account the fact that there had been, if that was the view that the Tribunal did take, delay on the part of the solicitors in considering the decisions that the Tribunal had to make.[19]The next ground of appeal is that the Tribunal does not appear to have taken sufficient note of the practical difficulties faced by the Appellant from the moment she concluded that the BDA could not or would not assist her; but the Tribunal had the full facts in front of them, and in that area made a decision on the facts which, in our judgment, is not arguably open to challenge.[20]There is one more point which is taken in the Skeleton Argument, albeit perhaps not in the Notice of Appeal, and that is in some way or other, the Tribunal's approach is in breach of Article 6 of the European Convention on Human Rights which is of course now part of our law. We will deal with that very shortly in a couple of sentences. The Human Rights Act does not make unlawful the right of national systems to erect and apply principles of limitation. If such principles are applied in such a way as to find after a fair hearing that a claim is out of time, there is no breach of Article 6, Article 6 does not outlaw limitation provisions and their application in a fair way. There is thus no arguable breach of Article 6 in this case.[21]It follows that the appeal, insofar as it is an appeal against the dismissal of the unfair dismissal claim must be dismissed, but in relation to the Disability Discrimination Act claim, on the ground which we have identified and on that ground alone, we will permit the appeal to go forward to a full hearing. Category C, time estimate two hours. An amended Notice of Appeal to be provided to this Appeal Tribunal twenty eight days after provision of the corrected copy of the judgment; that gives sufficient time for whoever it is who is advising Mrs Bishara at that stage to look at the judgment and act accordingly. Chairman's Notes, limited to Mrs Bishara's evidence as to her relationship with and interchanges with the BDA.