MISS O SEEBURN v (1) HORIZON NHS TRUST [2003] UKEAT 0560_03_1609

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0560_03_1609Case No Appeal No. EAT/0560/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS O SEEBURNAPPELLANT(1) HORIZON NHS TRUSTRESPONDENT
Before
Her Honour Judge Wakefield Mr D J JenkinsDate 16 September 2003
[1]APPEARANCES For the Appellant MISS O SEEBURN (the Appellant in Person) HER HONOUR JUDGE WAKEFIELD This is a Preliminary Hearing of an appeal by Miss Oumah Seeburn against two decisions of an Employment Tribunal sitting at Watford on 15 October 2002 by which her applications for an adjournment of the hearing were refused and her claims as regards unfair dismissal and race discrimination were then heard and dismissed. The Appellant was also ordered to pay £3,000 towards the costs of the Respondent.[2]There was a substantial background to the events of 15 October. The Originating Application was presented on 27 June 2001. The Appellant had been employed by the Respondents between April 1985 and March 2001 as a registered nurse. She claimed to have been unfairly dismissed and discriminated against on grounds of race and disability. The complaint as regards disability discrimination was struck out by an Employment Tribunal on 20 September 2002. That decision is the subject of a separate appeal which is not for hearing today.[3]The Employment Tribunal held four interlocutory hearings as regards the various complaints resulting in orders dated 19 October 2001, 28 February 2002, 4 July 2002 and 29 August 2002.[4]The full merits hearing was listed on 28 February 2002 for ten days to commence on 15 October 2002. On the first day of that hearing the Appellant attended in person and asked for an adjournment. The decision of the Employment Tribunal on this aspect was promulgated on 21 November 2002 and relates in the Extended Reasons the following as regards the Appellant's application to adjourn:
"The Applicant presented an application to adjourn in writing stating that she had contacted solicitors [and the name is given] who advised her to ask for an adjournment. She then told us that they had not attended because she had not paid for their advice but she wished for an adjournment as she felt she could not proceed today and was not prepared to do so. Her application stated that Miss Seeburn was acting in person and that she was seeking legal advice but it had not been possible for her lawyers to deal with the case at this late stage. It was pointed out that the Applicant was suffering from stress but the Applicant also relied on the Human Rights Act which she submitted entitled her to a fair hearing. The lawyers had pointed out to her that a fair hearing can only take place if she is legally represented. The Applicant in the written submission contended that she was in possession of new documentary evidence which was not subject to any public interest immunity application. Attached to that application was a medical certificate dated 14 October which stated that she should refrain from work for one week and that she was suffering from stress. The Respondents objected to the adjournment stating that the hearing had been fixed since February 2002 and the question of lawyers had been raised in September. The Applicant knew that this case had been set down to go ahead on those dates."
Conclusion After considering the matter in full and the interest of justice and the fact that this case had been commenced in 2001, the Tribunal decided this case should proceed and the application for an adjournment was refused."[5]This conclusion of the Employment Tribunal was reached in the light of the considerable history related in the decision itself of the Appellant's failures to comply with orders of the Employment Tribunal made at various interlocutory hearings. The decision also took into account, quite correctly in our view, the conclusion of the Employment Tribunal which struck out the disability discrimination claim, again for a failure of the Appellant to comply with orders for disclosure. That Employment Tribunal said in a decision sent to the parties on 2 October 2002: 8 "The conclusion of the Tribunal is that the Applicant has deliberately defied the Tribunal's orders in relation to the medical report of the clinical psychologist with a view to sabotaging the proceedings. In those circumstances the Tribunal struck out the Applicant's complaint…" 9 "…Near the end of the case, when it became clear that the Applicant did not have the sympathy of the Tribunal, she attempted to obtain an adjournment to obtain legal representation. This was refused as it was clear to the Tribunal that this was merely another attempt to delay matters. The Applicant has had many months to obtain legal representation.""[6]The Notice of Appeal attacks the refusal of the Employment Tribunal with which this appeal is concerned to grant an adjournment as being wrong in law; firstly, in that the Employment Tribunal failed to take account of or to give due weight to the Appellant's ill health on the day of the hearing and therefore exercised their discretion in a manner which was clearly wrong and, secondly, that the Appellant was thereby deprived of the right to a fair trial under Article 6 since her presence at the hearing was clearly necessary in order to give evidence in support of her complaints.[7]The Notice of Appeal referred to the case of Teinaz v London Borough of Wandsworth [2002] IRLR 721 . At paragraphs 20 and 21 of the judgment in the Court of Appeal, Peter Gibson LJ said this: 20 "Every Tribunal or court has a discretion to grant an adjournment and the exercise of such a discretion going as it does to the management of a case is one with which the appellate body is slow to interfere and can only interfere on limited grounds as has repeatedly been recognised. But one recognised ground for interference is where the Tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account. 21 A litigant whose presence is needed for the fair trial of a case but who is unable to be present through no fault of his own will usually have to be granted an adjournment, however inconvenient it may be to the Tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. The Tribunal or court is entitled to be satisfied that the inability of the litigant to be present in genuine and the onus is on the Applicant for an adjournment to prove the need for such an adjournment."[8]It is clear from the terms of the decision of this Employment Tribunal and from the terms of the written application on behalf of the Appellant to adjourn, referred to in the Chairman's comments at page 71 of our bundle, that the primary basis of the application to adjourn was to allow the Appellant to obtain legal representation. The Employment Tribunal were quite right to reject the application on that basis at that late stage when the Appellant had had many months to get such representation.[9]It was also in our view a proper exercise of discretion in all the circumstances and given the history to refuse the adjournment on the basis of the medical certificate and the Appellant's assertion at the hearing of "stress". Given the Appellant's presence in the Tribunal and the past history of failures to comply, applications for adjournments and prevarications, it was clearly in the overall interests of justice to refuse to adjourn this long-fixed and potentially lengthy hearing. We see nothing in the exercise of the discretion which can be criticised.[10]The Employment Tribunal then proceeded to consider the merits of the Appellant's claims for race discrimination and unfair dismissal. Evidence was heard from a witness for the Respondents and consideration was given to the documents in the Employment Tribunal's bundle including the Appellant's witness statements.[11]In a second decision promulgated on 21 November 2002 the Employment Tribunal dismissed the complaints. This decision is criticised in the Notice of Appeal on the following bases:
"e. The Tribunal erred in law in failing to make any express findings as to the reason for the dismissal and as to whether the dismissal was fair or not, before dismissing the Appellant's claim for unfair dismissal. f. In concluding that whilst the Appellant was off work; "
She refused to co-operate with the Respondents as they attempted to find alternative work for her and she failed to answer correspondence or attend some meetings even though at those meetings she had union support" (para. 3 Tribunal's Conclusions in Extended Reasons). the Tribunal: i. arrived at conclusions that were not supported by evidence – no relevant supporting findings of fact having been made in the earlier section of the Tribunal's decision; ii. failed in their duty to give adequate and intelligible reasons, since no reasons are given in support of these findings; g. In determining to dismiss the claims for race discrimination and/or unfair dismissal the Tribunal failed to take into account relevant considerations and/or act fairly in that: i. they failed to have any regard to the Appellant's supplementary witness statement (served under cover of a letter dated 4 October 2002), which is not referred to at all in their decision and which, in particular, contained further facts in support of the Appellant's claim that she was treated less favourably… ii. they failed to have any or any proper regard to the Appellant's first witness statement, despite having indicated to the Appellant before she left the Tribunal that they would do so. Para 16 of the Extended Reasons states that the Appellant did not give her ethnic group in her witness statement – it is in fact set out in the first paragraph"[12]We find no merit in any of these criticisms. As to race discrimination the Employment Tribunal considered the Appellant's witness statement and evidence as to comparators and they concluded, having referred in detail to the various comparators: 15) "These were all compared with the Applicant who was dismissed after 2 years and 4 months which appear to be more favourable than the comparators. 16) There were no other facts in the Applicant's statement which would support her claim that she was treated less favourably than the other employees because of her race. In her statement she does not even state to what ethnic group she belongs." That final sentence is factually incorrect but in our view makes no difference to the conclusion.[13]As regards unfair dismissal, the Employment Tribunal clearly found in their paragraph 14 what was the reason for the dismissal. They said: 14) "The Respondents dismissed her because of her incapability due to sickness for a period over 2 years and there was no likelihood of her returning to work in the foreseeable future."[14]As regards fairness, although the Employment Tribunal did not specifically make any finding they had correctly referred in their Extended Reasons to the relevant terms of section 98 of the Employment Rights Act 1996 and it is implicit from their findings of fact in their paragraphs 5 to 14 that the dismissal was fair.[15]On costs, the Employment Tribunal said this: 3) "The Applicant has consistently failed to co-operate with the Tribunal and follow the directions and orders of the Tribunal in pursuing her claim. She has claimed that she is suffering from ill health but at today's hearing the only medical certificate that she submitted in support of her application for an adjournment was for 7 days off work for stress. The Applicant was off work because of ill health for a period of 2 years and 4 months. She refused to co-operate with the Respondents as they attempted to find alternative work for her and she failed to answer correspondence or attend some meetings even though at those meetings she had union support. 4) At this hearing she failed to give evidence and refused to remain in the Tribunal room although she was urged to do so. We are satisfied that she has known about today's hearing and the issues that were going to be discussed for a considerable time and she has had many meetings with the Tribunal Chairman, the most recent being 20 September. She was fully aware of the problems that had to be overcome for her to succeed. 5) She was aware of the dates of the hearing and she had indicated that lawyers were going to be instructed by her. In our opinion she has conducted these proceedings vexatiously and unreasonably within the meaning of the words in Regulation 14 of the Employment Tribunal (Rules of Procedure) Regulations 2001 and accordingly we make the award of costs against her." They then ordered that the Appellant pay the sum of £3,000 as regards the costs of the Respondent.[16]The Notice of Appeal attacks this award on the following bases: h. "The Tribunal's decision to award costs against the Appellant was flawed by the errors of law in their decision making process identified above, in so far as the same had a bearing on their consideration of costs. i. In awarding costs against the Appellant the Tribunal further erred in: i. that they took into account an irrelevant consideration namely that they perceived the Appellant had, in effect, chosen unreasonably to absent herself from the substantive hearing…when in fact she was unfit to continue… ii. failing to have regard to a relevant consideration, namely that the Appellant could not reasonably have predicted her panic attack in advance of that morning's hearing… iii. that they misapplied the law in concluding that the Appellant had acted vexatiously without making any finding that she had acted for an improper purpose and in the absence of any evidence to support such a finding….and… iv. that they failed in their duty to act fairly and/or to give reasons in that the decision contains no explanation of how the figure of £3,000 (which is supposed to be awarded on compensatory, rather than a punitive basis, has been arrived at."[17]In all the circumstances leading ultimately to the dismissal or strike out of all the Appellant's claims the Employment Tribunal was in our view wholly justified in reaching the decision that within the terms of the Rule the award of costs was appropriate. The sum awarded was a small proportion of the whole costs incurred by the Respondent which had totalled £20,000. There is no merit in this ground of appeal.[18]The appeal on all grounds is therefore dismissed.