MRS S A BURMIS v 1) THE GOVERNING BODY OF AYLESFORD SCHOOL 2) MR M GROSVENOR 3) MR D LAWSON [2010] UKEAT 0132_10_1305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0132_10_1305Case No Appeal No. UKEAT/0132/10/ZT UKEAT/0133/10Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S A BURMISAPPELLANT1) THE GOVERNING BODY OF AYLESFORD SCHOOL 2) MR M GROSVENOR 3) MR D LAWSONRESPONDENT
Before
His Honour Judge Peter ClarkDate 13 May 2010
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant. For the Respondent MR STEPHEN WHALE (of Counsel) Instructed by: Kent County Council Legal & Secretariat Sessions House County Hall Maidstone ME14 1XQ SUMMARY PRACTICE AND PROCEDURE Postponement or stay Review Postponement of appeal; absence of medical evidence. Appellant unable to attend court. Relief from sanction; Employment Tribunal r13(2); further consideration by full Employment Tribunal on review. No appeal against review order rendering appeal against earlier refusal by Employment Judge to revoke unless order; thus present appeal academic. HIS HONOUR JUDGE PETER CLARK Mrs Burmis, the Claimant, was employed as a teacher at Aylesford School (the School), first as a supply teacher and then as a permanent member of staff in January 2002. She was the only black teacher at the School. She was dismissed in June 2004.[2]She brought proceedings in the Ashford Employment Tribunal. The Respondents were (1), the Governing Body of the School, (2), Mr Grosvenor, a fellow teacher there, and (3), Mr Lawson, the Acting Head Teacher at the time of the Claimant's dismissal.[3]She complained of unfair dismissal, sex and racial discrimination and victimisation and sexual harassment by Mr Grosvenor. The claims were resisted and heard over some 40 days by an Employment Tribunal chaired by Employment Judge Amin between 7 November 2005 and 13 October 2006. Following 26 days of deliberations between 30 October 2006 and 3 September 2007, by a Judgment with Reasons totalling 378 pages, signed by the Employment Judge on 28 September 2007, the Claimant's claims were upheld in part.[4]Each of the Respondents appealed that Judgment to the EAT. I sat on the division which heard the appeals over three days between 10 June 2008 and 12 June 2008. Our Judgment was delayed until 3 October 2008 for the reasons stated at paragraphs 38 to 40. The upshot was that the appeals of the First and Second Respondent were dismissed; the Third Respondents' appeal was allowed in part. For a fuller account of the history of those appeals I refer to our Judgment in EAT/1-3/08/LA.[5]By a Judgment of a full Employment Tribunal chaired by Employment Judge Wallis dated 14 July 2009, the remaining findings of the Amin Employment Tribunal (paragraph 12 of that Employment Tribunal's Judgment) against the Third Respondent, Mr Lawson, which had survived his appeal to the EAT determined on 3 October 2008, were set aside with the result that all of the Claimant's complaints against the Third Respondent were dismissed (the review judgment).[6]As Mr Whale, appearing for the Third Respondent points out, there has been no appeal against that Judgment.[7]Instead, the present appeal before me arises in this way. The Claimant appealed against orders made by Employment Judge Wallis, alone, on 7 May 2009 and 2 June 2009. That appeal was rejected on paper by Underhill P under rule 3(7) for the reasons given in a letter dated 31 July 2009. A fresh Notice of Appeal in similar terms, dated 28 August 2009 was then lodged and application made for on oral hearing before a Judge under rule 3(10). That hearing took place before HHJ Richardson on 1 March 2010.[8]On that occasion the Claimant was represented by Miss Belgrave of counsel under the ELAAS pro bono scheme. I refer to the Judgment given on that occasion. It seems that during the substantive hearing before the Amin Employment Tribunal the Claimant had lied about her criminal record. She admitted, through counsel, at a case management discussion held before Employment Judge Wallis on 12 March 2009 that she had been convicted of various offences in 1995 resulting in her serving a prison sentence.[9]As a result of that disclosure the Employment Tribunal decided, on the Respondents' application, to hold a review. To that end the Claimant was ordered to disclose documents relating to all Criminal Record Bureau / police checks in her possession and lodge a witness statement by 2 April 2009. She failed to comply by that date. The review hearing was fixed for 22 June 2009 to 23 June 2009. The Claimant's then solicitor, Mrs Saied, applied for an extension of time. An extension was granted to 17 April 2009. Again the Claimant failed to comply.[10]The First and Third Respondent - the Second Respondent has taken no part in these proceedings since the earlier appeal hearing in June 2008 - applied for "unless orders" to compel disclosure. Orders were made on 7 May 2009 expiring on 23 May 2009. On 21 May 2009 Mrs Saied applied to revoke the CMD order of 12 March 2009 and the unless order of 7 May 2009.[11]On 2 June 2009 Employment Judge Wallis declined to revoke the unless order which had, by then, taken effect. In the case of the Third Respondent, the sole effective Respondent to the present appeal, the 7 May 2009 order provided that unless the Claimant complied with the CMD disclosure order the Third Respondent's application for a review, and to have the remaining findings against him under paragraph 12 of the Amin Employment Tribunal Judgment set aside, would be granted without further order.[12]It is important to note, as did Judge Richardson at paragraph 21 of his Judgment, that at the review hearing the Employment Tribunal invited further argument from the Claimant's then representative, Mrs Saied, as to why the Claimant had not complied with the unless orders. Mrs Saied's submissions are recorded within paragraphs 22 to 36 of the Employment Tribunal review Reasons; the Employment Tribunal declined to grant relief from sanction, having considered the provisions of CPR3.9 (insofar as it is necessary to do so; see now Governing Body of St Albans Girls' School & Another v Neary [2010] IRLR 124 Court of Appeal) Reasons paragraphs 68 and 69. Thus, the claim against Mr Lawson stood dismissed as at 2 June 2009.[13]Judge Richardson dismissed all grounds of appeal save two appearing at paragraph 7.2(d)(v) and (vii) of the Notice of Appeal dated 28 August 2009. His reasons for permitting those grounds to proceed to this full hearing are contained at paragraphs 26 to 28 of his Judgment.[14]Before turning to those grounds of appeal I should say that today the Claimant is not present nor is she represented. Mr Whale again appears on behalf of the Third Respondent, Mr Lawson.[15]Mrs Burmis has made a number of applications for the postponement of this hearing. Most recently she applied on 6 May 2010, citing ill health but without producing a medical certificate. She then produced a statement of fitness for work from her General Practitioner, Dr Karunaharan, which bore various different dates; it stated that she was unfit for work; not that she was unfit to attend court; a material distinction in the light of the Court of Appeal guidance in Andreu v The Lord Chancellor's Department [2002] IRLR 728 ; compare Teinaz v London Borough of Wandsworth [2002] IRLR 721 .[16]Asked to comment, the Third Respondent's solicitor opposed the application for reasons set out in her letter of 10 May 2010. Having considered the rival positions, I directed on 11 May 2010 that the case remain in the list. One of the stated reasons was that the medical certificate did not state that the Appellant was unfit to attend court.[17]Upon receipt of that direction Mrs Burmis emailed the EAT at 2.17 pm on 11 May 2010, stating that she would be seeing her doctor at 4.40 pm that day to get a more detailed sick note. The next day she sent a new certificate from the GP which again declared her unfit for work but did not deal with her fitness to attend court.[18]In these circumstances the case remained in the list. In response the Appellant threatened self-harm. As I understood from the solicitor for the Third Respondent's letter, she did so also when refused an adjournment of a costs hearing before the Employment Tribunal on 8 February 2010. Mr Whale tells me this morning that she made a similar threat at a police station in late 2002 and to certain officers of Kent County Council in late 2004 in addition to the incident on 8 February 2010 when Mr Whale was present. She was advised to seek immediate medical help. I observe that there is no psychiatric evidence before me although I see from her correspondence that she has an appointment with a psychiatrist on 17 May 2010.[19]At 9.37 pm yesterday evening Mrs Burmis emailed a detailed written submission in support of her present appeal. She asked me to take account of its contents which I have done. Mr Whale has been provided with a copy of that submission and has been in a position to respond during the oral discussion this morning.[20]Quite properly, the first question raised by Mr Whale this morning was whether I was content to proceed with this hearing in the absence of the Claimant, or any representation on her behalf, she having parted company with her former solicitor, Mrs Saied. The short answer is that I am.[21]I reject the suggestions made by the Claimant, (a), that I have not taken her postponement applications seriously, and (b), that they were refused because she is black. The simple fact is that there is no medical evidence before me that she is unable to attend this hearing. Her pregnancy is not, of itself, a bar to her attendance.[22]On the other hand fairness extends not only to the Claimant but also to Mr Lawson, who has had this matter hanging over his head for six years. He is entitled to some finality. Further, I have the live grounds of appeal, HHJ Richardson's reason for allowing the appeal to proceed on those grounds and the Claimant's written submissions before me in order to determine this appeal.[23]Turning then to the two extant grounds of appeal, they fall within the pleaded grounds under the heading at paragraph 7(2)(d):
"The Employment Tribunal erred in law and/or allowed a serious irregularity to infest (sic) its Order and/or Decision of 2 June 2009."
[24]It, therefore, appears that HHJ Richardson was permitting, in part, the challenge to the Employment Judge's letter of 2 June 2009 (to use a neutral expression) only. An appeal against the unless order of 7 May 2009 was dismissed by his order, seal dated 3 March 2010 paragraph 2.[25]Mr Whale submitted that no appealable order was made in the letter of 2 June 2009. I disagree. The Employment Judge there dismissed the Claimant's application to revoke, among other orders the order of 7 May 2009. That refusal to revoke is itself an order susceptible to appeal to this Tribunal.[26]The first relevant ground, paragraph 7(2)(d)(v), is that the Employment Judge ignored the Claimant's notice of 29 May 2009 of non-receipt of one of the Orders of 7 May 2009. It is correct that Employment Judge Wallis issued two orders dated 7 May 2009. The first (EAT Bundle page 1) dealt with an application by the First Respondent for an unless order, the sanction for which was that she not be permitted to take part (other than for the purpose of being cross-examined) at the review hearing on 22 June 2009.[27]In the event she did take a full part and was represented at the review hearing, so that sanction evidently did not take effect. The second relevant order, (page 3), is that made on the Third Respondent's application, the sanction for which was that the Third Respondent's review application be allowed and the remaining part of the Amin Tribunal Judgment against him following the substantive appeal Judgment in 2008 be dismissed.[28]There is no evidence before me that the Claimant's solicitor did not receive the first order. However, it is clear and I am satisfied that she received the second relevant order and it was that order which was the subject of the revocation application (see pages 295 to 296) dated 21 May 2009. It follows, as I think HHJ Richardson anticipated (his Judgment paragraph 28), that there is, on examination, nothing in this point.[29]The second ground, paragraph 7(2)(d)(vii) should be set out in full:
"In that it failed to consider whether it was appropriate in law or otherwise to permit and/or to ignore and in that it permitted and/or ignored the entire Judgment against the First and/or the Third Respondent, made by a full Tribunal panel (the Amin Tribunal) after a 42-day trial when the panel heard extensive evidence to include matters of falsification or disclosure, withholding material evidence, as well as many admissions by the Respondent's own witnesses by substituting this Judgment with a procedural decision reached without proper consideration of all the facts."
[30]It seems to me that this ground, particularly relied on by Mrs Burmis in her written submission, is misconceived. In the 2 June 2009 letter the Employment Judge was not purporting to exercise a power to review the Amin Tribunal Judgment. Properly understood she was simply recording the effect of her refusal to revoke the relevant unless order of 7 May 2009, which was that, due to the Claimant's non-compliance with that order by 22 May 2009, the sanction there set out had taken effect (see ET rule 13(2)), namely, that the review was allowed and the outstanding claims against the Third Respondent, upheld by the Amin Tribunal, were dismissed. Accordingly this ground also fails.[31]However, even had I upheld the appeal on either ground, which I do not, I agree with Mr Whale's submission that the appeal would be academic because if I were to revoke the order of 2 June 2009 that would have no effect on that part of the unappealed review Judgment by a full Employment Tribunal, particularly paragraph 2 of that Judgment, which allowed the Third Respondent's review application, particularly in circumstances where that Tribunal, of its own motion, considered whether the Claimant ought to have relief from sanction under the 7 May 2009 relevant unless order and decided that she should not; see reasons paragraphs 68 to 69 to which I have earlier referred.[32]It follows, in these circumstances, that this appeal fails and is dismissed.