Appeal No.	EAT/1419/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 April 2000

Before
THE HONOURABLE MR JUSTICE BURTON
MR P M SMITH
MR T C THOMAS CBE

MS R SUNLEY	APPELLANT

LEICESTER UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – INTER PARTES

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondent	MISS J EADY
(of Counsel)
Instructed by:
Messrs Ironside
Solicitors
MacAuley House
10 Friar Lane
Leicester
LE1 5QD	

	MR JUSTICE BURTON:	This is an appeal brought by Ms Sunley in respect of her proceedings against the University of Leicester for unfair dismissal. There were also proceedings brought by Ms Sunley against the University of Leicester in respect of sex discrimination, which proceedings have been dismissed after a full hearing, including examination and cross-examination.

1.	These proceedings for unfair dismissal, however, came on in front of the Employment Tribunal at Leicester on 1st September 1999, after an earlier adjournment of the hearing without attendance because of pending domestic proceedings, when the Respondent was fully prepared to go ahead and was represented by Counsel and solicitors. The Appellant appeared in person. She said that she was suffering from stress and produced some evidence or, at any rate, allegation of medical history, and further asked for an adjournment not simply on the basis of her stress but also in the hope that she could be represented by a solicitor. She had apparently consulted a Mr Kilty of Kilty Goldfarb only the previous week. The Chairman recorded in his decision that there was no guarantee that he would ultimately represent her and certainly neither he nor any representative of his firm attended on that occasion, as is very often the case where the basis of an application for an adjournment is that there is a solicitor ready, willing and enthusiastic to act, to corroborate what the Appellant had said, that there was going to be someone to represent her. The Appellant asked for an adjournment on that basis.

2.	The Tribunal refused an adjournment, after it was opposed by the Respondent. The basis of the Tribunal’s conclusions are set out in paragraphs 3 to 5 of the Decision:

(1)	The Chairman recorded that the Appellant suffered from stress, but concluded that the Appellant would suffer from stress whether she was represented or not and that the medical history of the Appellant suggested that if the matter were adjourned the stress would continue.

(2)	She had only very recently instructed or attempted to instruct Mr Kilty. There was no guarantee that he would ultimately represent her and she could have made further and better efforts to obtain representation, and there was a considerable history of delay associated with the case, and there was no assurance that the Employment Tribunal would not meet similar claims for postponements on any resumed date.

(3)	There had already been those delays. The tribunal unanimously considered the case ought now to be dealt with and that they had an obligation to be fair to both sides. The Respondent had prepared, not for the first time, for the hearing. Witnesses had cleared their diaries and the earliest date for a resumed hearing would be January 2000 and it was not fair to the Respondent to adjourn the hearing until that time.

(4)	The Tribunal concluded that it was in the Appellant’s best interests to conclude the matter, that she was a woman of some intelligence and ability and had prepared her case well. She had prepared a statement running to 5½ typed pages and was capable of presenting her case, particularly as the Respondent would go first, and the Appellant could ask questions of the Respondent’s witnesses, assisted by the Tribunal if necessary.

3.	On the face of those reasons, the decision made by the Tribunal was well within the discretion that would be vested in a Tribunal	 and appears to have considered the matters that were, at any rate, known to it to be before them, fully and fairly.

4.	The outcome of that decision by the Tribunal was not that the Appellant then did her best, which would, no doubt, have been, in the light of the Tribunal’s conclusions about her, a reasonable best with their assistance, to meet the case for the Respondent, but that she walked out of the Tribunal. The hearing was postponed for half an hour to allow her time to consider her position, the building was searched, but she could not be found and she had left the Tribunal and did not return.

5.	The Tribunal then considered the case on the basis of the evidence before it, which it did, and delivered a lengthy and reasoned decision, which was delivered on 21st September and sent to the parties on 27th September 1999.

6.	The Appellant has appealed that refusal of an adjournment and, as I have indicated, on the face of it, her appeal, in the light of what I have said, would be a difficult one. The reasoned decision by the Tribunal, we are in no position to doubt, sets out their view of the unchallenged evidence, no doubt taking into account as best they could the witness statement of the Appellant, which they read, and she chose herself not to remain there, so that substantive matters may well be unappealable and, in any event, we are not persuaded at the moment in the light of the relatively exiguous consideration we have been able to give to the case, that there is anything in any substantial appeal; but we have not had any opportunity to consider that, because of the welter of documentation that has come in before us more or less at the last minute before the last hearing and this one. But it was not on the grounds of any merits, which we do not in any event shut out, but on quite different grounds that we caused this ex parte application for leave, by way of a preliminary hearing, to be adjourned to give the University the opportunity to attend, as they have done before us today by Miss Eady.

7.	What concerned us on the last occasion was this. It is was apparent from the papers we saw that Mr Hochhauser QC, who has been appointed to chair the domestic proceedings in University, has been addressed, I think as long ago last December, on the basis that an issue estoppel arises out of this hearing of the 1st September 1999, such that the Appellant is bound within those domestic proceedings by the conclusions reached by the Employment Tribunal. Therefore, the consequence of the adjournment may have been one which was not foreseen either by the Appellant or by the Tribunal when it did not grant the adjournment and when it then proceeded with the hearing in the absence of the Appellant. We wished to know whether the issue estoppel point was indeed being pursued by the University of Leicester. If it was not, then it would seem to us, it would have been difficult for the Appellant, although we would have heard her further, to substantiate an arguable case for an appeal against the exercise of the discretion and we would have thought it unlikely she could have substantiated any points, although no doubt we would have listened on any other ground. The issue estoppel point however appeared to us to be significant.

8.	Miss Eady has appeared before us today on behalf of the University with their instructions. She has told us that Mr Hochhauser was addressed on issue estoppel in December, not only on the basis that there was issue estoppel leading to binding conclusions of fact, which the Appellant could not challenge, arising out of the sex discrimination proceedings, which clearly is quite a different matter, and of course it may be sufficient for the University to rebut these domestic proceedings in their entirety; but also on the basis that there was issue estoppel arising out of the conclusion of this Tribunal in respect of which, it would no doubt be said, that  the Appellant had had an opportunity to deal with the case, which, after the refusal of her adjournment, she had not exercised.

9.	We asked Miss Eady whether the University is intending to proceed with their submission that an issue estoppel arose out of the 1st September 1999 hearing, and she has confirmed that they do so intend.

10.	Ms Sunley, the Appellant, between the adjourned hearing on the last occasion and today sought to obtain some legal representation and, I think, Legal Aid, which she has received, but no legal representation today. But plainly even if she had had representation today, the question as to whether there is in fact an issue estoppel arising out of the 1st September hearing could not possibly have been argued before us today.

11.	In the circumstances that it is sought to be asserted that there is an issue estoppel, it appears to us appropriate that this appeal should proceed. The limited ground, on the papers before us and the consideration we have been able to give to the papers, unassisted by Counsel, is only that the question of an issue estoppel ought to be considered on the basis, as I have earlier indicated, that it appears to us unlikely that it occurred, either to the Tribunal or to the Appellant, that the consequence of what happened on 1st September would be an issue estoppel, and that if it has had that consequence, namely that she not only loses her right in the Employment Tribunal but also is irreparably damaged in the domestic proceedings, then there might have been a different conclusion. On that ground, alone, we would consider it appropriate for the matter to go by way of appeal, which would no doubt include considerations as to whether there is in fact an issue estoppel, which can be best argued at the same time before the Tribunal, unless the parties otherwise agree, but we understand that Mr Hochhauser is of the same view, unless the appeal were to have been dismissed today.

12.	If there be any other grounds of appeal, we are certainly not shutting them out. But we have indicated that at the moment we cannot see that there would not be any substance in any other grounds. We are not, as we say, foreclosing the possibility, and consequently, if there is to be an amended Notice of Appeal that should be done within 14 days of today and such amended Notice of Appeal, be sent to the Employment Tribunal for consideration, and, subject to any application by the Respondent, or any further consideration by the Tribunal, it will stand as the amended Notice of Appeal in these proceedings.

13.	In those circumstances, we give leave to appeal and the only point at the moment, which we see as arguable is the question as to whether issue estoppel does arise as a result of this decision and if it does arise, whether that consequence was or was not in the minds of the Tribunal at the time, on an objective view point, and if it was not, whether it would have made or should have made any difference to the Tribunal’s decision, either to adjourn or to proceed in her absence.

14.	The amended Notice of Appeal is to be served on the Tribunal and on the Respondent within 14 days, and the Respondent will have seven days to make any submissions that it wishes the Employment Appeal Tribunal as to whether such Notice of Appeal goes either outside any permission that we could foresee, although as I say we have not considered anything other than the issue estoppel point, but there may be other points, or that they should not, for whatever reason, be pursued; and it may be that we would need to have a further preliminary hearing as to whether any such grounds can or should be pursued; but at the moment our preliminary view is that it is only on the issue estoppel ground that we are giving leave to appeal. If the Respondent makes any submissions they must be served on Ms Sunley and Ms Sunley will have seven days to make any response to those submissions.

15.	The case to be listed as Category A and heard over one day.