MS O OBASA v (1) MS KERRY CHISHOLM (2) MR STEVE MCLIVENNY (3) NORTHAMPTONSHIRE COUNTY COUNCIL (4) MRS SALLY BRESNAHAN [2003] UKEAT 1455_01_1707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1455_01_1707Case No Appeal No. EAT/1455/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS O OBASAAPPELLANT(1) MS KERRY CHISHOLM (2) MR STEVE MCLIVENNY (3) NORTHAMPTONSHIRE COUNTY COUNCIL (4) MRS SALLY BRESNAHANRESPONDENT
Before
His Honour Judge D M LevyDate 17 July 2003
[1]APPEARANCES For the Appellant MS O OBASA THE APPELLANT IN PERSON For the Respondents MS ANNE THOMAS (of Counsel) Instructed By: Northamptonshire County Council Legal Services PO Box 104 County Hall Northampton NN1 1AW JUDGE D M LEVY QC: The Appellant appearing in person seeks to adjourn the hearing of this appeal which has been set down for today. Her application is opposed by Counsel, who appears for Northampton County Council (Respondent). The Respondent was one of a number of persons or bodies against whom the Appellant had brought proceedings in an Employment Tribunal. We had been aware by a letter dated 16 July, that is yesterday, from her Solicitors that permission had been given at an earlier stage for an application refused by the Deputy Registrar for an Adjournment on 15 July, might well be renewed today and we anticipated that it would be. Nobody was here at 10:30 am and at 10:45 am we commenced hearing the Appeal. At 11:10 am the Appellant arrived. We learned that she had made a couple of phone calls to the Tribunal to advise that she was going to be late and unfortunately no message got through to the panel. As soon as we heard that she was on her way we ensured that all papers material to the adjournment were provided for her. At about 12 o'clock she made a very able address to us as to why the hearing should be adjourned. She told us that the point was very complicated, that she had not had the papers from either of the Solicitors who had been instructed on her behalf, that she was not happy with the Skeleton Argument which had been prepared many months ago by Counsel for her on the Appeal and, in the light of her dyslexia, it would be very unfair and against her human rights for the Appeal to go ahead this morning.[2]We think it appropriate to set out what has happened since a decision was made by the Employment Tribunal as to this appeal.[3]The Employment Tribunal's decision on the Appellant's case was promulgated as long ago as 18 October 2001. The Extended Reasons ran to 87 pages. Of the complaints which she had lodged against the Respondent and others in relation to the Race Relations Act 1976 , the Disability Discrimination Act 1995 , some failed because they had been brought out of time, others failed for reasons given in the lengthy judgment given by the Tribunal.[4]A Notice of Appeal was received by the Employment Appeal Tribunal as long ago as 28 November 2001. On 15 July 2002 the matter came before the Employment Tribunal on a Preliminary Hearing before a panel headed by Mr Recorder Langstaff QC. I read from the first and second paragraphs of his decision:
"1 In this appeal, which was listed for a Preliminary Hearing from a decision of an Employment Tribunal at Bedford, we have been asked by Mr Okoro, who appears today as he did for Ms Obasa before the Tribunal, to grant an adjournment. 2 The reason why he seeks an adjournment is that he feels unable to do justice to the Appellant's case himself. ... ."
[5]Then a number of questions are asked by the Tribunal as to why that happened, but at the end of the day, the Tribunal having set out various matters with regret allowed the application for an adjournment and indicated that it should be re-listed as quickly as possible. In fact, it was re-listed before a panel headed by Mr Recorder Langstaff QC with different lay members on 23 September 2002. On that occasion the learned Recorder gave a judgment, which said this, at paragraph 4:
"4 The appeal which has been elegantly advanced before us with no little skill by Mr Sykes has done justice to the length of the proceedings and of the Tribunal decision and has advanced three essential grounds upon which it is said there is an arguable case which might go forward to a full hearing of this Tribunal. Although in respect of one matter of relatively small compass we feel that there is an arguable case which at least merits consideration, whatever the outcome may finally be, that it be because we have come to the view that we do not think that there is an arguable case in respect of any of the other matters we shall give our reasons a little more fully. ... ."
[6]The learned Recorder then gave reasons why other matters could not go forward and then deals, in paragraphs 19 and 20, with the one matter which was to go forward. "19 It is however in relation to the second aspect in which it was claimed that the employer had a duty to make a reasonable adjustment that we think there is here an appeal which needs to be considered further inter partes. The complaint here is that the Applicant before the Tribunal claimed that there should have been a transfer procedure. It was recorded by the Tribunal as being one of the submissions made by the Applicant's representative to it. But yet when the Tribunal came to consider whether or not the Section 6 duty had or had not been performed we think it is arguable that there is no consideration of whether or not the issue of a reasonable internal transfer policy was ever addressed. 20 We think that it may be arguable that such a policy might constitute, a step which it was reasonable for an employer to take in order to prevent arrangements or features on its premises having a substantial disadvantage upon the Appellant. To that extent and to that extent alone we think there is and remains an arguable point in this appeal."[7]Directions were then given by the learned Judge on that occasion. The Tribunal ordered that the Appeal be allowed to a full hearing solely in respect of the failure by the Respondent to have a reasonable internal transfer policy. The remainder of the appeal was dismissed, in accordance with the judgment given by the learned Recorder. Permission to appeal was refused. The Tribunal further ordered that Skeleton Arguments and copies of authorities to be relied on to be exchanged between the parties and lodged with the Employment Appeal Tribunal not less than 14 days before the date of the Full Hearing.[8]The appeal was listed for hearing on 2 April 2003. A Skeleton Argument was lodged by Counsel then appearing for the Appellant on 28 March 2003. A Skeleton Argument on behalf of the Respondents had been lodged by the Tribunal on 4 December 2002. Also on 28 March 2003, a fax was received from the Clerk to Counsel instructed to represent the Appellant asking for the hearing to be stood out to 2 pm. The Tribunal replied that this was not possible. No one attended to appear for the Appellant on 2 April when the case was called on. Later that day Judge Burke QC found it necessary to adjourn the hearing to be heard at the earliest convenient date. It was re-listed for 17 June to come before a panel headed by Judge Burke.[9]On that date, we understand that the Appellant's Counsel did not arrive to assist her at the Employment Appeal Tribunal. Judge Burke felt obliged to adjourn it to come before a different panel on another date, which was fixed for today. The Appellant has drawn our attention to the fact that Judge Burke's Order provides for a transcript of his Judgment to be made, with a copy to be sent to her former Counsel and to Mr Okoro, her Solicitor. She avers that she is disadvantaged because she has not seen such a transcript. We would add that no one else has, but we understand from Counsel, Miss Thomas, who has been in the case throughout, that the reason the transcript was ordered was because an issue arose about the costs of the application for the adjournment that day. It appears, therefore, that the transcript is not material to the merits of the appeal.[10]Counsel, Miss Thomas, who has had the conduct of this matter on behalf of the Respondent Counsel since the inception, is shortly to go on maternity leave. It is obviously helpful to the Respondent, if a Counsel who has had the conduct of the matter the whole time should have it until the conclusion, but Miss Thomas does not pray that in aid. What she prays in aid is that, if she is not able to do this appeal today and another Counsel has to be instructed, still further costs will be incurred in addition to the many which have already been incurred by the various earlier adjournments.[11]We have to bear in mind that there has to be an end to litigation. We have to remember the rights of the Appellant on the one hand, and the rights of the Respondent on the other. Having listened very carefully to all that the Appellant in person has said to us in seeking an adjournment, we have come to the conclusion that it would be wrong for us to adjourn this hearing today. We have told her, which is the fact, that when Miss Thomas addresses the point of the appeal she will point out to us, anything which can properly said on the Appellant's behalf, if she does not support it herself. We think it is a relatively narrow point which Mr Recorder Langstaff QC and his panel has sent to be considered as the one ground to put forward on this appeal; in our judgment it should be determined this afternoon.[12]In the circumstances we will dismiss the application for an adjournment and commence the hearing of this appeal at 2 pm. We will start a little later in the afternoon, if the Appellant would like us to, if she is prepared to start at 2 o'clock, we will start then. [Break for adjournment][13]We have two points to deal with today, a major one and a minor one. We will deal, if we may, with the minor one first.[14]This is the third time this appeal has been listed for hearing. On the second occasion an Order was made by Judge Burke QC and his colleagues when an adjournment was granted and, in the course of the Order, the Tribunal directed that Mr Sykes, the Barrister who appeared for the Appellant, and Mr Pedro Okoro, the Solicitor, by whom the Barrister was instructed, should swear and file an affidavit with the Employment Tribunal setting out effectively why nobody had appeared to represent the Appellant on two occasions. No date was put by which time those affidavits had been sworn. Further, the Tribunal ordered that there should be a transcript of the judgment and a copy sent directly to Mr Sykes and Mr Okoro. We understand that today, 17 July, a month later, there has been no transcript of the judgment made and no copy sent to Mr Sykes or Mr Okoro.[15]We have seen a draft affidavit from Mr Sykes, but he may want to amend that draft before he makes his affidavit, when he has had the opportunity to see the transcript of the judgment. We appreciate that not dealing with this today causes problems with the Respondent, and possibly the Appellant, but given the fact that there was no date in the order for the affidavits to be sworn and there has not been a transcript of the judgment, we cannot solve it.[16]What we will do is order that the affidavits by Mr Sykes and Mr Okoro should be sworn within 14 days of the transcript of the judgment being sent to them; this being the holiday season, there will be liberty for an application to be made to extend that time, if that cannot be carried out. When that has been done the matter can be restored by either party to the Tribunal for a determination on the costs issue.[17]We turn to the point in issue on the Appeal of the Appellant. On 23 September 2002, a Preliminary Hearing of this appeal took place before a panel headed by Mr Recorder Langstaff QC. An Order was made striking out most of the grounds of appeal which were in the Notice of Appeal, settled on behalf of the Appellant, and allowed one point to go forward. That point was this. The Tribunal ordered that the appeal be allowed to proceed to a full hearing, solely in respect of "the failure [of the Respondent] to have a reasonable internal transfer policy". The remainder of the appeal being dismissed in accordance with the judgment of the Employment Appeal Tribunal. Mr Recorder Langstaff QC gave a long and reasoned judgment, from which there has been an appeal, which was dismissed.[18]After two further adjournments, this matter came before us this morning. There was an application for an adjournment by the Appellant which, for reasons which we gave this morning, we felt obliged to refuse for the reasons we gave then. We have heard argument this afternoon on the point which was allowed to go forward.[19]The Appellant has skilfully, if we may say so, and effectively made points which she wanted to make, though she went rather outside the ground on which the Notice of Appeal was before us. She feels, and she feels very strongly, that she has been badly treated by the Respondent, but the question for us is whether the failure to have a reasonable internal transfer policy was properly dealt with in the Decision of the Employment Tribunal.[20]We cannot, in this judgment, attempt to summarise the 78 page decision of the Employment Tribunal. What is quite clear to us is the issue of a transfer policy was raised. It is equally clear to us that the Tribunal did not have a policy about a transfer; it is equally clear to us that the Tribunal very carefully considered all the complaints made by the Appellant, including the transfer complaint and, although in the long judgment they did not effectively mention the transfer policy in giving the reasons for the Appellant failing, it must have been in their minds. The Tribunal clearly consider the written submissions of the Counsel appearing for both sides. This appears from the way the findings of fact were set out, in the way that the considerations of law were set out and in the concluding remarks made by the Tribunal. Other forms of discrimination were very well, if we may say so, dealt with. Careful consideration was also given to the Appellant's disability and the steps taken by the Respondent to deal with them. The fact, in our judgment, that there was no express reference to the inter transfer policy of the Respondent does not lead to the conclusion that it was not considered by the Tribunal. Looking at the very long judgment in the round, we are quite satisfied that anyone reading the judgment would have known that the issue must have been considered by the Tribunal. Therefore, this ground of appeal cannot succeed.[21]Therefore, while we pay tribute to the Appellant, who has striven very well to present her case today, despite the difficulties that she felt of appearing in person, given the very clear judgment of the Employment Tribunal, we fear that the chances of her succeeding, whoever represented her today, must have been slim. The fact that she has represented herself has not led to our decision; it is the facts of the case which have led to it. There has been a full hearing in an Employment Tribunal. The Tribunal has reached decisions on the facts which it was entitled to reach. Although this particular point did not have the t's crossed and the i's dotted, it was in our judgment, having regard to the matters which were very fully put forward to us, showing us both sides of the argument on behalf of the Appellant by Counsel, who appeared for the Respondent, the appeal has to be dismissed. We accordingly dismiss it.