Appeal No.	 EAT/496/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 October 2000

Before
THE HONOURABLE MR JUSTICE CHARLES
MS B SWITZER
MR T C THOMAS CBE

DR M A RUBY	APPELLANT

KINGS LYNN & WISBECH HOSPITALS NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M SETHI
(of Counsel)

MR JUSTICE CHARLES:	

1	We have before us today an adjourned preliminary hearing in an appeal brought by Dr Ruby against the Kings Lynn & Wisbech Hospitals NHS Trust.  It came before this Tribunal chaired by myself on 18 October.  On that date it was adjourned to today to enable Dr Ruby to instruct somebody to represent him, his identified representative being Mr Sethi of Counsel, who had appeared for him on that occasion under the ELAAS Scheme.  In the judgment I gave on that occasion I identified from the documents a problem we had relating to what had happened to the unfair dismissal claim.  

2	The matter has come on today and Mr Sethi did represent Dr Ruby.  However, he told us that he had only been provided with the relevant bundle last night.  No explanation was offered as to why that was so late.  No information was provided through Dr Ruby as to what had happened to the unfair dismissal claim.  

3	In the judgment I gave on 18 October I indicated that this Tribunal would write to the Employment Tribunal seeking information.  That was done and an order related to discovery in the proceedings was sent by the Employment Tribunal which has absolutely nothing to do with the question they were asked.  

4	Over the adjournment by a letter of 25 October, Mills & Reeve, the Solicitors acting for the Kings Lynn and Wisbech Hospital NHS Trust have sent us a bundle of documents which would indicate that the unfair dismissal claim was dismissed on withdrawal.  Dr Ruby has not had an opportunity to see those documents and certainly Mr Sethi has not and I did not get them copied before the hearing commenced.

5	The fact that Mills & Reeve have most helpfully written to us giving us information most helpfully does not excuse Dr Ruby for his failure to provide information as requested by this Tribunal.  The relevant bundles and documents should be in his possession.  He is making an application to this Tribunal on an ex parte basis and it is incumbent upon him, as a litigant, to provide full and proper information to this Tribunal.

6	During the course of his submissions today, Mr Sethi sought to identify points of law.  The first point he raised related to the unfair dismissal claim and he advanced an argument based on section 2(1)(viii) of the Employment Rights Act 1996 and the secondary legislation that is relevant thereto.  He said that there was an arguable point of law that the Employment Tribunal had not properly considered the unfair dismissal claim because they had not referred to those sections.

7	In the Extended Reasons referred to by Mr Sethi that was the case, but he was somewhat surprised to hear that it would seem that this claim was dismissed on withdrawal at a time when Dr Ruby was advised by a firm of Solicitors.

8	Mr Sethi sought to identify other arguable points of law.  Firstly, he argued that the Employment Tribunal in their Extended Reasons did not correctly identify the nature of the implied term of trust and confidence.  This was in the face of an express reference to the term in identifying the case made by Dr Ruby, but the argument that was put was having regard to the Malik case the Employment Tribunal had taken an incorrect approach in the application of that term.

9	This argument was not fully developed, but I confess that our immediate impression in respect of it was that it would be difficult for Dr Ruby to establish a reasonably arguable point of law on that basis.  But the point has been “flagged up” by Mr Sethi.

10	The next point Mr Sethi flagged up was a general point that there was lack of attention to detail in the decision and therefore, he said, it did not comply with Meek.  He then pointed to some points of fact which are disputed by Dr Ruby, none of which seem to be central, save to the point he then sought to make by reference to the “grey letter”. Mr Sethi’s difficulties were demonstrated when he presented this argument because he could not put his hands on the “grey letter” with any degree of promptness.  The first letter that was produced to us was not the “grey letter” but a letter written by the Respondents to the author of the “grey letter”.

11	This point, as we understood it, was that Dr Ruby was saying that the response of the Respondents after the termination of the training contract and in writing a letter which prompted the issue of a “grey letter” was one that was disproportionate.  Again, that argument was not fully developed by Mr Sethi, and as we understood it Dr Ruby would have wished to develop that argument himself if the preliminary hearing had continued further to-day.  Again this is an argument as to which our first impression is that Dr Ruby will have some difficulty in establishing that it founds a reasonably arguable point of law.

12	We are faced with a difficult decision to make because this appeal has already come before this Tribunal on a preliminary hearing on one occasion, when it was adjourned to enable Dr Ruby to be represented.  He has not taken proper advantage of that adjournment and, in our view, there are strong grounds to say that there should be no further adjournment of this matter and we should simply hear Dr Ruby today and deal with the preliminary hearing on a final basis.

13	However, we are mindful of the fact that on the last occasion a letter was handed in demonstrating that Dr Ruby was not well and this judgment and the last judgment demonstrate that there is, and remains, some confusion as to what has gone on in the history of this case.  I should say at this stage that the letter from Mills & Reeve encloses yet further Extended Reasons and other Decisions.

14	Accordingly, what we propose to do is to take the exceptional course of adjourning this preliminary hearing again.  In doing so, if it is not already clear to Dr Ruby, I seek to make it as clear as I possibly can that on the next occasion he must ensure that the documents he wishes to refer to are before the Tribunal and also, that a full history of this case is before this Tribunal and he cannot “pick and choose” between Reasons and Extended Reasons that have been given.

15	We are grateful to Mills & Reeve for writing to us and confining themselves very properly to the one factual point raised in our earlier judgment as to what happened to the unfair dismissal claim.

16	Given the wide-ranging nature of Dr Ruby’s Notice of Appeal and Skeleton Argument and notwithstanding that the purpose of a preliminary hearing is to avoid time, trouble and expense to Respondents in respect of appeals that do not raise reasonably arguable points, in this case we are going to take the unusual course of inviting Mills & Reeve to provide this Tribunal with a full chronology of the hearings before the Employment Tribunal with a copy of the bundle that was before the Employment Tribunal.  Included within that full chronology it would be helpful if any applications for preliminary directions which are referred to by Dr Ruby could also be included.  

17	We will also take the exceptional course of giving the Respondents permission to either put in submissions in writing on the adjourned preliminary hearing or to appear on that adjourned preliminary hearing:  that is a matter entirely for them.

18	Whether or not Dr Ruby is represented on the next occasion is a matter for him.  He is clearly a man of some intelligence and will understand that what he has to identify are points of law and not a simple re-run of all the facts.  He should take advantage of the advice that is open to him from Mr Sethi in seeking to identify those points.

19	This adjournment can, we think, properly be described as a final adjournment.  What we propose to do is to direct that the adjourned preliminary hearing will be set down during the six-week period beginning next January which would make it possible for the Tribunal that hears this case to be chaired by me. Having now read the papers twice, and although we have expressed preliminary views on points raised by Mr Sethi I do not feel it is necessary to impose that burden on another chairman if it can be avoided.

20	We will direct that the adjourned preliminary hearing is to be listed for half to three-quarters of a day, so that the matter as to whether it raises any points that are reasonably arguable can be properly dealt with.

21	At present we have all found (and I think Mr Sethi from his submissions has also found) that the Skeleton Argument put in by Dr Ruby is a confusing document which does not focus on points in the appropriate way, namely it does not focus on points of law which he asserts are reasonably arguable.  In that context, of course, we recognise that he is not a trained lawyer.  However, as I have said, he is a man of some intelligence who has clearly done some research in writing that document and it seems to us that if he re-visits it, he should be able to focus the points he wishes to make more clearly and accurately.  I express the hope that he either does so himself or with the benefit of legal advice.

22	On that basis we will grant an adjournment described as a final adjournment of this preliminary hearing and issue the invitation I have referred to to the Respondents.