1) KNOWSLEY METROPOLITAN BOROUGH COUNCIL 2) THE GOVERNORS OF BROOKSIDE PRIMARY SCHOOL v MISS H MCGOVERN [2004] UKEAT 1001_03_1504

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 1001_03_1504

Case No Appeal No. UKEAT/1001/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

1) KNOWSLEY METROPOLITAN BOROUGH COUNCIL 2) THE GOVERNORS OF BROOKSIDE PRIMARY SCHOOLAPPELLANTS

MISS H MCGOVERNRESPONDENT

Before

His Honour Judge Birtles Mrs C Baelz Mr D Evans

Date 15 April 2004

[1]APPEARANCES For the Appellant MR R BRADLEY (Of Counsel) Instructed by: Messrs Mace & Jones Solicitors Drury House 19 Water Street Liverpool L2 ORP For the Respondent MISS H GOWER (Of Counsel) Instructed by: Messrs Reynolds Porter Chamberlain Solicitors Chichester House 278-282 High Holborn London WC1V 7HA SUMMARY Employment Tribunal erred in: 1. making a finding of fact based on no evidence and 2. relying on a non-witness shaking her head in disagreement with a witness as relevant factors in deciding it was just and equitable to extend time. Jurisdiction point remitted to a fresh Employment Tribunal. HIS HONOUR JUDGE BIRTLES This is an appeal from the decision of an Employment Tribunal sitting in Liverpool on 24 October 2003. The decision was sent to the parties and then entered in the Register on 30 October 2003. The Chairman was Miss Elaine Donnelly. The members were Mr J Brabin and Miss B Sanders. The Decision of the Employment Tribunal was that it would be just and equitable to admit the Originating Application by Mrs McGovern out of time. The case was then adjourned to 11 December 2003 to take the Applicant's evidence in chief and the time-table was set. We have been told by Mr Bradley who appears today for the two Appellants that that time-table has been adjourned pending the result of this appeal.

[2]The Decision of the Employment Tribunal is in the standard form of Extended Reasons. It begins by setting out the facts, paragraphs 2, 3-4; the law in paragraph 5; recites the submissions in paragraphs 6 and 7 and reached its conclusions in paragraph 8. The remainder of the decision sets out a time-table for the hearing of the substantive case. It is sufficient for me to read the short facts found by the Tribunal:

"2 The Tribunal found the following facts proved. The applicant was employed as a teacher at the 2 nd respondent's school from 1990 until she took early ill-health retirement on 11 March 2003. The applicant alleges in her originating application that in September 2001 her union representative requested reasonable adjustments under the Disability Discrimination Act 1985 (the 1995 Act), but these were not implemented. The applicant was then suspended on medical grounds with effect from 22 January 2002. This suspension became long-term sick leave in March 2002. The applicant was certified as fit for work in September 2002, but was refused permission to return to full duties. The Tribunal accepted the evidence of Mrs Rathbone, who is the applicant's close friend, that thereafter the applicant's psychological condition deteriorated substantially and quickly. The Tribunal noted the evidence of the applicant's consultant psychiatrist who stated that the applicant is severely depressed and isolates herself. She is very anxious in the presence of other people and tends to suffer more panic attacks. She tends to go out at nights to avoid people and the Tribunal noted that in April 2003 the applicant was hospitalized because she was at that time feeling suicidal. She was hospitalized for a total of four weeks. Her consultant psychiatrist said that in March 2003 the applicant felt tired most of the time and struggled to do her housework. She has low self-confidence and self-esteem. Mrs Rathbone confirmed that since September of this year the applicant has deteriorated further. 3. Mr Anderson gave evidence that he was first consulted by the local union lay representative in December 2002, when he was asked for advice. He gave that advice in January 2002. Unfortunately the applicant was unable to see him until 5 July 2003, when she met him with Mrs Rathbone and a social worker. Mr Anderson took notes of that meeting, collected the medical evidence and prepared an originating application. He submitted that application for auhorization to the legal department of his union, the NASUWT, on 25 July 2003. Authorisation came back on 25 July and the application was presented on 29 July. 4. Whilst off sick between March and September 2002 the applicant approached the Disability Rights Commission and prepared an originating application complaining of unlawful discrimination. The applicant said that her illness prevented her from continuing with this application. However, the Tribunal preferred the evidence of Mrs Rathbone that the applicant actually sent the originating application to the wrong place. Mrs Rathbone said that the applicant sent the application to the Disability Rights Commission, who acknowledged it and nothing else then happened in September 2002 the applicant was certified fit for work and it was only when she was refused work did her condition deteriorate badly."

Those are the facts as found by the Employment Tribunal.

[3]The Tribunal's conclusions as I have indicated are contained in paragraph 8 of its Decision:

"8. The Tribunal has decided to exercise its discretion in the applicant's favour. This has been a difficult decision. The Tribunal notes that the applicant was well enough to prepare an originating application in May 2002 and it was either not sent or was sent wrongly to the Disability Rights Commission. The Tribunal believes that it was sent wrongly because by September 2002 the applicant's GP was declaring her to be fit to return to work. Therefore potentially the applicant could have put in an originating application much earlier. However, it appears to the Tribunal that the last act of discrimination alleged by the applicant is the refusal to allow her to return to work and it is quite clear from the evidence before the Tribunal that the applicant deteriorated significantly and quickly after she had been refused permission to return to work. From then until July she was in no position to give proper instructions to her advisors. (I interpolate that is July 2003) It has been clear to the Tribunal that the main prejudice caused to the respondent would be questions over the cogency of the evidence. However the Tribunal noted that the headteacher of the 2 nd respondent vigorously shook her head in answer to some of the points made by Mrs Rathbone when stating what she believed was the applicant's case and as a local authority, the Tribunal would have expected the 1 st respondent to keep detailed notes. It was quite clear that the headteacher had no difficulty in remembering what had happened and therefore the Tribunal concluded that the prejudice caused to the respondent by allowing this case to proceed was more than outweighed by the prejudice to the applicant if it did not proceed. The Tribunal could have restricted the applicant's claim for compensation to the refusal to allow her to return to work, but in view of the fact that she could still bring evidence of the earlier incidents which had led to her being suspended and then off ill, the Tribunal decided to exercise its discretion in respect of all the applicant's claims."

[5]Before dealing with Mr Bradley's grounds of appeal it is important to keep in mind the relevant dates. The Originating Application is contained in the Employment Appeal Tribunal bundle at pages 1 and 2 and also page 13. It recites that the Applicant was employed at the Brookside Primary School from 1990 to 11 March 2003. There were then set out a number of incidents of alleged disability discrimination including in paragraph 7 the following:

"Despite medical confirmation that the applicant was fit to return to work in September 2002, the headteacher refused to allow her back until she was "fit to return to full duties"

. The Originating Application itself was received by the Liverpool Employment Tribunal office on 29 July 2003 - see Employment Appeal Tribunal bundle page 1. It is therefore quite clear that this application was very considerably past the three month time limit prescribed by the Disability Discrimination Act and that the issue that the Tribunal had to consider was whether it was just and equitable to extend time for the reasons advanced at the hearing before it.

[6]We have been greatly assisted today by the skeleton arguments and oral submissions prepared by Mr Bradley for the Appellant and by Mr Rohan Pirani who prepared the Respondent's skeleton and Ms Helen Gower who made oral submissions to us. There are three issues for us to decide. The first issue relates to the findings by the Tribunal which I have read in relation to the Appellant's claim that she was fit to return to work in September 2002 and was refused re-admission to the school to work. The legal position in relation to an appeal against an Employment Tribunal's exercise of its discretion to extend time is cogently set out in the headnote of Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

. It is sufficient for me to quote from part of the headnote where the Court of Appeal said this:

"Accordingly, an appeal against a tribunal's refusal to consider an application out of time in the exercise of its discretion should only succeed where the EAT can identify an error of law or principle making the decision of the tribunal below plainly wrong in this respect. In the present case, the employment tribunal gave the exercise of its discretion careful consideration and reached a satisfactory reasoned decision. The EAT had no jurisdiction to overturn the tribunal's decision."

Applying that principle Mr Bradley argues two points. The first point is that when one reads the Employment Tribunal's decision at paragraphs 2, 4 and 8 it is clear that the Employment Tribunal has made a finding of fact on the evidence that it has heard that Mrs McGovern was certified fit to return to work in September 2002 and was refused re-admission to teach at the school. Mr Bradley goes on to argue to say that there was no evidence before the Employment Tribunal which could have justified that finding of fact and it was quite clearly a matter to which the Tribunal attached great weight to in deciding that the last act of discrimination took place in September 2002. That influenced it, he said, in a compelling way to exercise its discretion to extend time in the Applicant's favour.

[7]Against that Miss Gower argues primarily that a close reading of the text of the decision of the Employment Tribunal leads one to the conclusion that what the Tribunal is doing is reciting the allegations in the Originating Application and not making a finding of fact. In the alternative she argues that there was material before the Employment Tribunal which entitled it to make that finding of fact. We have read and re-read the decision of the Employment Tribunal and listened carefully to the submissions made to us. In our judgment the passages which I have read in paragraphs in 2, 4 and 8 mean that this Employment Tribunal did make a finding of fact that Mrs McGovern was certified fit to return to work in September 2002 and that this Respondent refused her permission to do so.

[8]It is also clear to us that that was a matter which heavily influenced the Tribunal in exercising its discretion to extend time because it brought forward the last act to September 2002. We do not accept Miss Gower's subsidiary argument that in any event the Originating Application referred to an incident in the summer of 2002 when Mrs McGovern went to the school and was refused admission. It is quite clear reading the judgment of the Employment Tribunal that they were heavily influenced as I say by their finding of fact that the last act took place in September 2002. It follows that the Tribunal fell into an error of law in making that finding of fact for the simple reason that there was no evidence before it on which it was entitled to do so. The evidence before it is set out in various places in the bundle. It had before it part of a report by Dr Al-Nufoury of the Mental Health Directorate at Whiston Hospital. That report is in fact dated 17 March 2003. In other words some six months after the incident of September 2002 relied on by the Employment Tribunal. Dr Al-Nufoury did not see Mrs McGovern until 26 November 2002.

[9]There was also before the Tribunal a letter from Dr Rahman who we understand to be Mrs McGovern's general practitioner. That letter is dated 30 June 2003 and says this:

"Mrs Hazel McGovern is going for an out of time tribunal. For the last eighteen months Mrs McGovern has not been in a position to deal with the issues due to her severe work related depression & anxiety. But now she feels that she is ready to fight. She requested my support & I will try my best to support her if it is advisiable."

That, together with a later sick note from Dr Rahman which ran from 30 June 2003 to 30 November 2003 was most of the material in front of the Employment Tribunal. In addition it had two short statements from Mrs McGovern. One dated February 2002 and one dated September 2003. Neither refers in any way to the alleged fitness to work and refusal of work in September 2002. Finally it had before it the notes of evidence of a Mr Wellbourne, a Trade Union official who saw Mrs McGovern in January 2002 and in July 2003. The second is material. Paragraph 6 of the note of the 2 July 2003 says:

"6. 'Report' read by Dr Bajag (Luke Brodie). Baker Day/assemblies. 7. Retrun Sept 2002. – Medical reasons. 'all duties' Dr Bajag"

We do not know who Dr Bajag was. There is no medical evidence from him before us in the EAT bundle and there was none before the Employment Tribunal. For completeness sake I should refer to the fact that Mrs Rathbone gave evidence before the Employment Tribunal as did Mr Wellbourne. They, of course, are not medically qualified. That is the sum total of the evidence before the Employment Tribunal and upon which it based its finding of fact that Mrs McGovern was certified fit to return to work in September 2002 and was refused re-admission to the school. In our judgment there was simply no material whatsoever upon which this Employment Tribunal could have made that finding of fact and accordingly it fell into error.

[10]The second ground of appeal is that the Employment Tribunal erred in law in referring to its observation of the Appellant's headteacher, the headteacher of Mrs McGovern's school, who attended the Tribunal as an observer but was not called as a witness: paragraph 8 of the Tribunal's decision. The Tribunal was quite clearly influenced by the fact that the headteacher apparently vigorously shook her head in answer to some of the points made by Mrs Rathbone when stating what she believed was the Appplicant's case. In our judgment it is quite inappropriate for an Employment Tribunal to take account of the demeanour of a person who is not called as a witness and we accept Mr Bradley's point that head shaking could mean a number of things and of course in any event would have referred to specific pieces of evidence. In our judgment the Tribunal again erred in law in taking that into account in deciding to exercise its discretion in the Applicant's favour.

[11]It follows therefore that the appeal is allowed. We turn to the third issue. We have to decide the issue of disposal. We have carefully considered the submissions made by Mr Bradley and Miss Gower. In our judgment we cannot ourselves decide the issue whether it is just and equitable to extend time for Mrs McGovern to bring a claim for disability discrimination because we did not hear the evidence before the Employment Tribunal from Mrs Rathbone and from the Trade Union Representative. We have not been provided with the notes of their evidence. It would therefore be quite wrong for us to exercise our discretion in place of that of the Employment Tribunal. We have decided that the appropriate course of action is to remit the issue of jurisdiction only to a fresh Employment Tribunal. It will, of course, be open to the parties there to call whatever evidence they wish to do so. We do not consider it appropriate to remit this case to a fresh Tribunal to hear the whole of the merits of the case and the issue of jurisdiction. Our reasons for that are first, that we are told by Mr Bradley that the hearing is likely to take some eight days with consequential costs to both parties whereas the jurisdiction hearing will only take no more than one day. Second it is clear from the Tribunal's decision when it gave directions that this hearing is likely to be split over a number of days because of the medical condition of Mrs McGovern.

[12]That again is something which in our view will have to be handled with considerable delicacy. It is important that both parties know as soon as possible whether or not the issue of jurisdiction is decided in favour of Mrs McGovern or the Appellant here so that the case may be disposed of as soon as possible. If it is decided in favour of Mrs McGovern then we would simply add one comment. In its directions the Employment Tribunal decided (with the agreement of the representatives present) that the hearing of Mrs McGovern's evidence should take place at Mrs Rathbone's house and indeed at which the headteacher would not be present during the examination in chief. We have drawn the attention of the parties to Regulation 10(2) and (3) of the Employment Tribunals Regulations which made it clear that the hearing must take place in public and the limitations contained in Regulation 10(3) do not seem to apply to this case. There has of course been recent authority in the Court of Appeal about this and we simply draw the attention of the parties and indeed the new Employment Tribunal to that because if it decides to exercise its discretion in Mrs McGovern's favour it will need to give directions for the hearing. For the reasons given we allow the appeal and remit the case to be tried only on jurisdiction before a fresh Employment Tribunal.