MISS N MEHTA v THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HARINGEY [2006] UKEAT 0636_05_2311

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0636_05_2311Case No Appeal No. UKEAT/0636/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS N MEHTAAPPELLANTTHE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HARINGEYRESPONDENT
Before
His Honour Judge McMullenDate 23 November 2006
[1]APPEARANCES For the Appellant MISS N MEHTA (The Appellant in Person) For the Respondent MR JAKE DAVIES (of Counsel) Instructed by: L.B. of Haringey Corporate Legal Services Alexandra House 10 Station Road Wood Green London N22 7TR SUMMARY Practice and Procedure – extending time for presenting a claim The Employment Tribunal Chairman conducting consideration of a review of her Judgment that the claim was out of time should have given a decision on the Claimant's case as to whether the change in the Employment Tribunal claim form requirements, set against the advice she was given around the threshold of 1 October 2004, affected the Claimant's failure to present the claim so that time should be extended. HIS HONOUR JUDGE McMULLEN QC I will refer to the parties as the Claimant and the Respondent. This case has a tortuous procedural background, from which it emerges that on 24 May 2006, pursuant to directions given by HHJ Burke QC and Burton J, a full hearing took place of the Claimant's appeal. The substance related to the date of her termination by the Respondent from her position as a finance officer where she had worked for 15 years or so. The Claimant raised a large number of grounds of complaint. As Mr Davies of Counsel, appearing for the Respondent, puts it, she complains of everything.[2]Very extensive case management was dedicated to this claim and very substantial case management orders were made prior to a pre-hearing review being conducted by the Chairman Miss A M Lewzey, sitting alone on 12 July 2005. She determined the date of termination as being 31 July 2004. That Judgment was upheld by HHJ Birtles, sitting here. As I understand it, the Claimant did not apply for permission to appeal here, but has so applied, with the assistance of the CAB, to the Court of Appeal.[3]The other aspect of HHJ Birtles's Judgment dealt with the issue on appeal here. It relates to a separate appeal, which I will call the review appeal. It ended with a direction that the Chairman should indicate which documents, both the medical and the Claimant's own documents, were put before the Chairman when she made her decision not to review her substantive decision. Postponement[4]At the outset of today's hearing, Miss Mehta who represents herself made a repeated application for a postponement. This application had been preceded by a number of other applications, all refused by the Registrar, by me, and by the President. Nevertheless it was open to her to renew the application. The grounds which she put forward were these: breakdown in the computer; lack of legal representation; health.[5]As the Claimant was making submissions it quickly became apparent that she was actually giving evidence and, in fairness to the Respondent, I directed that she should give her evidence on oath and the opportunity should be given to the Respondent to cross examine. That has been done. The Claimant told me that she had been legally represented by Counsel, acting through the Free Representation Unit (FRU) up to and including the hearing before Judge Birtles, and up to some date towards the end of October 2006, when, to put it neutrally, they parted company. Thereafter, the Claimant sought assistance from a number of firms but pointed to difficulties in finding a solicitor who would work under the Legal Services Commission regime. Substantial hourly rates were quoted. But yesterday she had found a solicitor, although contact had been made with this firm earlier. I was told that no application was made by that firm but that if the Claimant were successful today an application would be made for legal help funding, and she has signed a form. Nevertheless the solicitor did not make an application today on behalf of the Claimant.[6]The Claimant also complained that she had suffered a breakdown of her computer and had been to PC World to get assistance but they were not able to fix it yet. She also made a general representation about her health but, as she accepted, there was no medical evidence before me explaining why she would be unable to represent herself today. Significantly, she received advice at the CAB, in relation to her application to the Court of Appeal for permission, that legal aid funding was available for that and for the EAT. Yet after it became apparent that the FRU representative would not be available, three weeks have passed and still no representation is in sight.[7]This is a very old claim. It has not even got off the ground. A number of officers of the Council is criticised and it appears to me that there should be no further delay. The hearing was adjourned from Judge Birtles in May 2006 and it is in accordance with the overriding objective that this case be heard today. I do not accept that the Claimant is at a disadvantage. She has, after all, had orders made by me excusing her from various procedural steps required by the orders made by Judge Birtles, Judge Burke QC and Burton J. She also is able to rely on the fully prepared case available to Judge Birtles, and to that end I have taken time today to read the Skeleton Argument for that hearing. I do not accept that any relevant documents may have been captured on the computer and are not available, nor do I accept that relevant documents are not here, for the Respondent has produced a bundle which contains, so far as I can tell, the relevant material. I am not about to entertain an application by the Claimant, who has refused to co-operate in producing a bundle, to today produce a bundle of 400 pages. Suffice it to say I have sufficient to make a judgment in this case. Thus I refuse the application The appeal[8]The legal issue in form concerns the refusal by the Chairman to review her Judgment. In substance it is an attack on the reasons why the Chairman held that, although the claim was out of time, it was not just and equitable on the one hand, or for the purposes of unfair dismissal it could not be said that it was reasonable, for time to be extended. She is some eight or nine days outside the primary time limit of three months.[9]The Claimant did not attend the PHR, which had been carefully sculpted under very strict management directions by previous Chairmen. She caused messages to be sent, indicating that she was unwell. It may have appeared to the Chairman that she would have indicated that she was possibly going to be better later that day or the following day for it was a two day hearing. On the basis of that material the Chairman went ahead. I cannot find any error in the Chairman's approach to the refusal of the application to postpone the hearing. She conducted the PHR in the absence of the Claimant. She had before her the Claimant's claim form and the witness statements which she had prepared. She decided not to exercise her discretion to allow the claims to be presented in time.[10]The Claimant, as well as appealing to the EAT, decided to apply for a review and that is where the real point in this appeal lies. During the course of the preparation for that, two medical documents were produced. The first was from Dr Jacob Kurien, a General Practitioner treating the Claimant, dated 14 July 2005. To put it in context, the hearing was listed for 12 and 13 July. The doctor reports that the Claimant consulted him on 13 July at his surgery. She suffered from panic attack symptoms on 12 and 13 July and had attended the walk-in centre at Edgware Community Hospital for Health. She was therefore unable to attend "the recent Employment Tribunal hearing". In a longer medical report of 8 August 2005, the doctor said this:
"On 12 July 2005 she developed rather distressing panic attack and anxiety symptoms and was in no state to attend. This is her very first episode and I gather it was extremely distressing for her. She had attended the Edgware walk-in centre and received attention and symptomatic treatment. She consulted me the following day."
[11]On the basis of that medical material, plus other materials which I do not regard as relevant, an application was made for a review. One of the grounds for a review is the absence of the party and another is new evidence. It is accepted by Mr Davies today that at least this case falls within the former. But he points out that under Rule 35 a review is not always to be mandated in the absence of a party. I agree. It is to be considered in the light of all the material. There is no reason to go behind this medical opinion. Thus I hold there was material before the Chairman upon which it would have been proper for her to have reviewed her Judgment because the Claimant was absent for what I hold to be good medical reasons. The issue, therefore, was whether, notwithstanding the absence of the Claimant, Rule 35(3) applied. This says the following:
"The application to have a decision reviewed shall be considered (without the need to hold a hearing) by a Chairman of the Tribunal which made the decision … and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked."
[12]The focus of the Chairman's consideration on review was whether or not the Claimant had a reasonable prospect of affecting the Judgment refusing to extend time, if she could have attended. The Chairman said this:
"Miss Mehta had already produced a Witness Statement which was used in relation to the Second Judgment and therefore the only aspect of the hearing that she was not able to take part in was in cross-examination of the Respondent's witnesses."
[13]On the basis of that material it seems to me that the Chairman has erred. It is not sufficient simply to say that she could not take part in cross examination. She had the right to make an address to the Tribunal. If the hearing went ahead after she was found to be unable to attend by reason of certificated and properly reported upon medical ill-health she lost the right, not only to give oral evidence in accordance with her witness statement, and of course to cross examine the Respondent's witnesses, but to make submissions.[14]It also appears that the documentary material available to the Chairman contains other reasons which might have a bearing on her Judgment. The Claimant contended in her claim form that she had difficulty getting the correct form because of the administrative changes being made in the Employment Tribunal procedure at the time and because of her pursuit of internal appeals. Both of those are referred to by the Chairman in her substantive and in her review Judgments. But they indicate that there is material there upon which a discretion could be exercised and they called for a decision. The way in which the Claimant responded to the difficulties put in her way by the administrative changes in 2004 would be a matter for the Chairman to consider. This could only be done if she were there.[15]Thus, in my respectful judgment, the Chairman ought to have granted the review application and proceeded to a review. It cannot be said that the Claimant, by her presence, stood no chance of changing the Chairman's judgment. I am very clear that it is not my job, on appeal, to second guess matters of discretion by the Chairman but, in this case, I am strongly impressed by the fact, as is accepted today, that there was at least a sound medical reason for the Claimant not attending. I do not accept that there was nothing further the Claimant could say to influence the Chairman's view about failure to meet the deadlines. I agree that the lack of opportunity to cross examine the Respondents may not be a strong reason, but certainly the material which she put before the Chairman did warrant further treatment, which is not apparent in the reasons of the Chairman, for example the change in the Employment Tribunal administration of the claim forms. As our experience in the EAT shows, it was unclear in September 2004 whether a claim had to be presented on the now standard form and the form was not readily available.[16]The parties must take it that I am very reluctant effectively to breathe life into this case, but it seems that the interests of justice do require me to do so. I am very conscious that there will be a substantial number of actors in this drama who will now have their parts reactivated. This case will be remitted. Having heard argument, it seems to me it can be remitted to any Employment Tribunal Chairman sitting alone, since there is no dispute that this is the proper forum for this PHR, and the issue of time will there be considered. The appeal is allowed.