MS E FRY v MINISTRY OF DEFENCE [2003] UKEAT 0146_02_0104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0146_02_0104Case No Appeal No. EAT/0146/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS E FRYAPPELLANTMINISTRY OF DEFENCERESPONDENT
Before
His Honour Judge J McMullenDate 1 April 2003
[1]APPEARANCES For the Appellant MR DECLAN O'DEMPSEY (of Counsel) Instructed by: Equal Opportunities Commission Arndale House Arndale Centre Manchester M4 3EQ For the Respondent MR DAVID BARR (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS HIS HONOUR JUDGE J McMULLEN QC This case is about Employment Tribunal in the treatment of an application to adjourn and in disposing of the case in the absence of the Applicant. The judgment represents the views of all three members. We will refer to the parties as Applicant and Respondent. Introduction[2]It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at London (South), Ms C E Taylor Chairman, Mrs Stockley and Mr Dennehy, registered with Extended Reasons on 4 December 2001. The Applicant attended herself. Today she is represented by Mr Declan O'Dempsey of Counsel. The Respondent was represented there and here by Mr David Barr of Counsel.[3]The Applicant claimed, in a series of four pleadings (as amended), dating from 8 November 2000 to 6 November 2001, sex discrimination and/or victimisation and breach of contract. The Respondent denied that the application could be heard by the Employment Tribunal in respect of breach of contract and that appears to have been taken no further. It denied the discrimination claims. The issues[4]The essential issues were defined by two earlier Employment Tribunals. At the second, on 8 May 2001, Chairman Ms E C Hyde and members made decisions as to the issues to be tried. These were essentially replicated in the Reasons of the decision under appeal.[5]The Applicant's allegations which started the proceedings included an allegation of rape by a Petty Officer in February 1998 and of sexual assault by an Officer in June 1998. The former was indicted but acquitted at Bristol Crown Court, when the Applicant attended but declined to give evidence on behalf of the prosecution. The latter was convicted at court marshal of drunkenness and not charged with assault. For the purposes of these proceedings the allegations of the Applicant against the latter are not resisted by the Respondent.[6]Further directions were given by consent for a detailed timetable in the preparation of this case. Parties were represented by Counsel. The Applicant was at that stage assisted by solicitors instructed on behalf of the Equal Opportunities Commission. The Tribunal added this: 16 "The Directions set out above were made with the agreement of the parties at the hearing, after we had given our oral decision as to jurisdiction. We have, however, added the usual sanctions, with a view to encouraging the parties to abide by the timings they agree and to minimise the risk of further delay." A reference was made to further medical evidence and the requirement that that be made available well in advance.[7]There was no appeal from the substantive decision at that hearing, which was to narrow the issues and to allow for matters to be treated as extending over a period of time; and of course there was no appeal against the directions given by consent.[8]Another Chairman, Mr John Warren, refused applications to postpone on 2 and 8 November, made by the Respondent, and on Thursday 15 November, orally and confirmed on 16 November, made by the Applicant's solicitors. On 15 November those solicitors indicated that their client would attend on 19 November (the date of the hearing fixed 6 months earlier) for the sole purpose of renewing the application to adjourn.[9]We understand that a request had been made on behalf of the Applicant for further particulars to be sought relating to comparators and that on 7 November the EOC withdrew its support on the basis that there was insufficient evidence relating to the comparators for it to justify representation at the hearing. As we have been told by Mr O'Dempsey, the EOC provides representation in about 50 hearings a year and its resources for this are limited.[10]At the merits hearing on 19 November 2001 the Employment Tribunal refused the application by the Applicant to postpone the hearing, and on her withdrawal it heard the case and dismissed it. The issue now is whether it committed an error of law in so doing. The Legislation[11]The relevant power is contained in the 2001 Employment Tribunal Regulations, Reg 10 (the overriding objective) and in Rule 11 (3): 11 (3) "If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 10 (5) and any written answer furnished to the tribunal pursuant to rule 4 (3)." The Decision[12]The Employment Tribunal found that the Originating Application should be dismissed, pursuant to its power under 11 (3). The Appeal[13]The Applicant appeals against the finding, both on the basis of substance and on procedural grounds, that the Tribunal failed to conduct such hearing as was required, pursuant to 11 (3). EAT Directions[14]Directions sending two points in this amended Notice of Appeal to a full hearing, were given at a Preliminary Hearing by Mr Recorder Langstaff QC and members on 15 July 2002. It included a third point relating to the contention that the Tribunal had erred in law in its postponement decision, "with greater hesitation". The Parties[15]The Respondent is, in reality, the Royal Navy. The Applicant was engaged by the Respondent from February 1997 on an open engagement for up to 22 years service, until the relationship ended by her being discharged on invalidity in November 1999, with effect from February 2000. At the time of the events (1998 to 1999) the Applicant was engaged ashore at Yeovil on training in the mess, prior to being sent to sea in the Fleet Air Arm The Employment Tribunal Findings[16]The Tribunal heard, on the first day, the application by the Applicant for a postponement. The Tribunal noted the Applicant's submission that she could not represent herself and that she had not arrived with any witness statement. Various requests for postponements which had all been refused. The Applicant was in breach of directions given at the hearing she attended with her Counsel in May, as to the preparation of a bundle and a chronology. No steps had been taken by the Applicant, or her legal adviser, to prepare them.[17]A medical report was prepared by the Respondent. New documents had come to light in which the Applicant had named only one comparator and documents had been produced in respect of this comparator. The Tribunal decided as follows: 6 "The documents demonstrated that he … was not an appropriate comparator." The EOC would not assist the Applicant in pursuit of her case, once those documents had been revealed to it.[18]The Tribunal refused the application giving three reasons:(1) That the application had been lodged a year prior to the hearing and sufficient time had been given to her team and she had come to the Tribunal without even her own witness statement.(2) The Applicant had contended that the EOC might restore its funding if more evidence had come to light. The Tribunal said that adequate time had been made to prepare the case and the Applicant could have made requests earlier.(3) As to the claim that she could not represent herself, the Tribunal said this: 7 (iii) "The Tribunal is used to dealing with parties in person and moreover the issues in this case are such that the Applicant should be able to give evidence on her own, without a representative present. The Tribunal was prepared to assist the Applicant insofar as it is practicable." Thereafter the Tribunal announced that it intended to proceed with the hearing.[19]The Applicant said that, on the advice of her solicitor, she was taking no part and intended to seek legal advice and appeal. The Tribunal explained the procedure under Rule 11 (3). The Applicant said she would take no part and, after a brief adjournment, the Tribunal dismissed the case pursuant to Rule 11 (3), giving its reasons as follows: 11 "…the burden of proof is on the Applicant. If the Applicant plays no part in the proceedings there is no prospect of her satisfying that burden which is upon her. We are obliged to have regard to Regulation 10 which includes the saving of costs. No useful purpose would be served in continuing these proceedings…" Directions[20]The Tribunal plainly directed itself in accordance with the relevant rule, Rule 11 (3), and Regulation 10. The Applicant's Case[21]The Applicant submitted that the Employment Tribunal had erred in law in failing to grant the adjournment. It should have seen a medical report which, together with other documents, had been handed in. Neither the Applicant's nor the Respondent's medical expert dealt with the fitness of the Applicant to represent herself; but, nevertheless, the issues in those reports were relevant to the issue before the Tribunal.[22]Mr O'Dempsey contended that there was no fair hearing. The Tribunal should have evaluated the issues and the difficulties caused by any adjournment; in particular, that there were allegations of an institutional failure by the Respondent and that the Applicant had been through intensely traumatic events. The Tribunal should have been alert to the problem of the Applicant having to represent herself against a background of withdrawal by solicitors, withdrawal by the EOC, delay in putting together the claim about the comparators and the underlying facts of the case.[23]Mr O'Dempsey acknowledged that the Tribunal had its attention drawn to Article 6 (1) of the European Convention on Human Rights , the right to a fair trial. He relied on Airey v Ireland No. 1 A/32 [1979-80] 2 EHRR 305.[24]As to the procedural issue, it was contended that Rule 11 (3) does not apply where the Applicant actually attends and, in any event, the Tribunal should have evaluated the Originating Application going beyond mere consideration, which he acknowledges did occur. The Tribunal exercised a power which it did not have and failed, for example, to conduct the exercise in hypothetical comparison, enjoined by the Court of Appeal in Balamoody v UK Central Council for Nursing [2002] IRLR 288 . The Respondent's Case[25]On behalf of the Respondent, Mr Barr contends that there is a high test in seeking to unseat a decision made in the exercise of its discretion by an Employment Tribunal to grant or refuse a postponement. The Tribunal had paid attention to the fact that the proceedings were over a year old, the subject matter dated back on average 3 years, the Applicant had had an opportunity to prepare, had agreed to the timetable and had the assistance of Counsel. She had taken no steps, herself or through her solicitors, to comply with the directions and it was common ground that the next slot for the case would be in May 2002 if at all. The Applicant had presented the Tribunal with a fait accompli .[26]It was contended that the issue of comparators is fundamental in every discrimination case and that consideration of this matter should have been given earlier than 6 November. Nevertheless, the Respondent did comply with the Applicant's request and it provided the material in sufficient time for it to be digested. It was, after all, only four pages and the Tribunal noted the single comparator in issue and recognised that he was inapt. The overriding objective militated in favour of upholding the Tribunal's decision which was keen not to lose a 5-day slot.[27]As to Airey (above), Mr Barr pointed out that in that case the complainant before the European Court of Human Rights was the sole woman out of about 250 who had appealed to the High Court in Ireland for a judicial separation, without the benefit of legal representation. There was not the factual complexity in the instant case which was asserted by the Applicant and the medical evidence, which was available to the Tribunal, was not relied upon by the Applicant. She did not contend that for medical reasons she was unfit to present her case.[28]As to the procedural issue, it was contended that under Rule 11(3), a failure to attend is to be construed purposively; that is, a failure to attend with a view to pursuing the Applicant's case. Simple attendance at the back of the Tribunal room, without taking any part in the proceedings, was to be equated with failing to attend for the purpose of pursuing the case. The Originating Application had been considered, as appeared to be conceded by Mr O'Dempsey's Skeleton Argument. There is to be no trial on the pleadings. The Applicable Principles (1) The postponement issue[29]We start with the overriding objective. The Tribunals are, following 2001, given wide discretion to act fairly; not only to the parties who appear in the particular case, but, bearing in mind the long queue of persons who seek justice before them. It is in the public interest that Tribunals assert their authority to control proceedings. The Tribunal, in the run-up to this case, had done an exemplary job in focusing the parties' minds on the upcoming hearing. It did it even-handedly in refusing postponements to Respondent and Applicant alike.[30]It is true that an Applicant is entitled to a fair hearing. We reject the approach of Mr O'Dempsey, relying heavily on Airey , because the factual circumstances are materially different. It will be recalled that the comparatively easy procedure in the Republic of Ireland District Court was not available to the complainant in Airey and that she was facing very high legal representation fees, following an extremely complicated initiation of proceedings. It also required the Applicant to prove extremely difficult matters, such as adultery or unnatural practices.[31]In our judgment, an Employment Tribunal in London does not present the same difficulties to an Applicant. It is a majority lay Tribunal. It is rightly proud of its informal procedures with a view to getting cases heard and the truth obtained.[32]The majority of parties before Employment Tribunals go without legal representation. In this case the Applicant did have legal representation before a previous Tribunal and in the run-up to her case. A most difficult aspect of her case would have been the telling of her story to her solicitor through a witness statement. This had been done. A witness statement had been prepared, had been revised by the Applicant and could probably have been put into a final form.[33]Mr Barr pointed to the constitution by gender of this Employment Tribunal. Let it be said that this was a highly-experienced Employment Tribunal, whose members were well able to recognise the difficulties of an ex-service woman presenting a case against the Royal Navy. It did not regard her as being at a disadvantage in putting her case.[34]The Applicant had not relied upon her medical evidence, nor had she asked for a day's adjournment when she might get assistance. No consideration appears to have been given to the prospect of booking privately Counsel who had been presumably booked to conduct the hearing for her, or alternatively going back to the solicitors.[35]The Tribunal is not under a duty to consider assisting the Applicant beyond what it did. It is no part of a Tribunal's duty to present the case for her. The weighing of all the factors in an application for the exercise of discretion is a matter which must be done fairly and judicially; but the decision which it makes is unimpeachable unless it is wholly wrong in principle – a decision which no Tribunal, faced with these circumstances, could reasonably reach.[36]As to the postponement issue, the principles therefore are clear. It is a matter of discretion for a Tribunal, having looked at all of the circumstances and the nature of the case to be presented. (2) The Rule 11(3) issue[37]As to the procedural issue under Rule 11 (3), it seems to us that the principle is one of purposive construction. We reject Mr O'Dempsey's submission that an Applicant can avoid the rigor of 11 (3) simply by attending and taking no part. Attendance or representation, for the purposes of taking part in the proceedings, is what is required. Failure to do either of these will give the Tribunal the power, but not the duty, to dismiss the application. Before it does so it must consider the Originating Application. It is conceded that the Tribunal at least had in front of it and considered the Originating Application (see the comprehensive list of factors which the Tribunal knew the case involved set out in paragraphs 7 (1) - (8) of Mr O'Dempsey's Skeleton Argument).[38]Further, we are assisted by a judgment of the Court of Appeal in Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 , where Peter Gibson LJ, (giving a judgment with which Henry LJ, Sir Christopher Slade agreed) at paragraph 16 on the predecessor to Rule 11 (3), said this:
"… if Rule 9 (3) had applied in the present case it would not have resulted in Mrs Mensah being in a better position than in fact occurred. It was for her to prove that she had been relevantly discriminated against and that would require evidence. In the absence of her or a representative for her, as no evidence had been proffered by her on the neo-natal unit point, the Industrial Tribunal would have been bound to dismiss her complaint. "
Thus the principle appears to be that there is no need for a full trial on the pleadings, as long as the Tribunal considers the Originating Application and the submissions made to it. Conclusion[39]Applying those principles, we reject the arguments of Mr O'Dempsey and uphold Mr Barr's. In our judgment the Tribunal was robust but not unfair. It is always difficult for an appellate body to review the discretion of a Tribunal which is necessarily exercised in difficult circumstances. These were difficult circumstances, but the Tribunal is directed to make a decision.[40]We referred both Counsel to the judgment of the Court of Appeal in Maloney v London Borough of Hammersmith and Fulham and Others , Unreported, 7 May 1999, extract in IDS Handbook, Employment Tribunal Practice and Procedure, at 242 to 243. A list of factors was involved in the Court of Appeal's judgment, when it upheld the Tribunal's decision to refuse a postponement of a case listed before it for 25 days at the instance of a female Applicant claiming sex discrimination.[41]It is true that delay is a neutral factor in our case, whereas it was important for the issue in Maloney for the matter to be heard sooner rather than later. Nevertheless, it does seem to us that the Court of Appeal indicated in that case alternative routes to justice, which included that the Applicant, or at least her evidence, could have been put before the Tribunal by way of a witness statement, giving her the opportunity to adjourn later once they had heard that. A range of other options was made available.[42]In our judgment, both the Applicant in our case and Ms Maloney, in presenting the Tribunal with a fait accompli , gave no options for other handling of the case. As we have said, this appears to be a robust decision by a Tribunal about which we initially had some unease; but we were not the Tribunal vested with the authority to make the decision and to exercise the discretion. It did so in the interests of all of the litigation, weighing the factors properly, which it recorded for us.[43]We hold that the decision to refuse the application to postpone was within its discretion. We note that the application had been made in order to allow the Applicant more time. Even now, however, we have been told that, although the EOC are supporting this appeal, no steps have been taken or were taken to obtain the further information which might persuade the EOC to support the case at first instance. Thus, as the Applicant's own advisers indicate, without that material this case lacks merit. That is not a factor in our decision, but forms part of the chronology. It is of concern to us that the EOC pulled out at a very late stage, albeit because of the late preparation of the case by its panel solicitors.[44]As to the procedural issue, we hold that the Tribunal has done precisely what was required by 11 (3). This was to consider the Originating Application. That the Applicant had originally attended for the purpose of applying for a postponement and then took no further part in the proceedings, does not denude the Tribunal of its power under 11 (3). It must in the interests of justice consider the applications and here it considered whether to dismiss the application or dispose of it in some other way and its decision so to do cannot be faulted.[45]We would like to thank Counsel and EOC and Treasury solicitors in today's hearing for all the assistance which they have given to complete these proceedings within the agreed schedule.