Appeal No. EAT/1136/99 & EAT/1252/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 June 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MRS J M MATTHIAS

MRS S PIERRE	APPELLANT

FAMILY HOUSING ASSOCIATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED	

JUDGE PETER CLARK

1.	This morning we have before us listed for Preliminary Hearing 2 cases in which Mrs Pierre is the Appellant.  The first is EAT/1252/00, Mrs Pierre v Family Housing Association, second, EAT/1136/99, Mrs Pierre v The London Borough of Richmond.

2.	We have read correspondence between the Appellant and the Registrar in which the Appellant has sought a general stay of these proceedings on the grounds that she is unfit to attend the hearing.

3.	We note that the application for postponement is renewed before us.  We refused that application.  In order to explain our reasons for doing so it is convenient in this combined judgment to deal with both cases and then finally to deal with the application for adjournment.

The First Appeal
4.	This is an appeal by Mrs Pierre, the Applicant before an Employment Tribunal sitting at London (S) (under the Chairmanship of Ms Christiana Hyde) against that Employment Tribunal’s decision, promulgated with Extended Written Reasons running to 33 typed pages, on 16 August 2000, dismissing her various complaints of unfair dismissal, race and sex discrimination and victimisation and breach of contract brought against the Respondent, Family Housing Association.

Background
5.	The Appellant, who is of African-Caribbean racial origin, commenced her employment with the Respondent, FHA, as a Housing Officer on 2 January 1990.

6.	She left that employment, having found fresh employment with the London Borough of Richmond, on 20 February 1998.  Her employment with Richmond commenced on 23 February 1998.

The Complaints
7.	She presented an Originating Application to the London (N) Employment Tribunal on 19 May 1998.  She was then represented by solicitors, Stephens Innocent.  She raised the heads of claim to which we have earlier referred and provided some particulars relating to incidents in 1990, 1997 and 1998.

8.	On 24 October 1998 her new representative, Mr Draycott of Fulham Legal Advice Centre (FLAC), lodged amended grounds of complaint running to 14 typed pages, raising a number of incidents relied on stretching through the entire period of her employment.

9.	The Respondent, having initially entered a Notice of Appearance resisting the claims dated 11 June 1998, then lodged amended grounds for resistance on 18 November 1998, responding to the additional claims made by the Appellant, whilst taking the point that most were out of time.

The Employment Tribunal Hearing
10.	The claims initially came on for hearing on 19 and 22-24 March 1999.  At that stage the Appellant was represented by Mr Draycott.  In addition to withdrawing a breach of contract claim he indicated that he withdrew any claim of intentional victimisation against the Appellant and further indicated that he would adduce evidence of earlier incidents by way of background evidence to the claims of constructive dismissal and direct race discrimination.  The Employment Tribunal set out the Appellant’s various allegations and their relevance to the individual complaints at paragraphs 11-34 of their reasons.

11.	The case was not completed within the first 4 days of hearing and was adjourned, coming back for hearing on 17-21 January 2000.  By then the Appellant had parted company with Mr Draycott and had appointed new solicitors, Christian Fisher, who in turn instructed Counsel, Mr Herbert, to represent the Appellant at the January hearings.

12.	Having completed the evidence and submissions the Employment Tribunal deliberated in private on 24-25 January 2000, promulgating their reserved decision, with extended reasons, as we have said on 16 August 2000.

The Employment Tribunal Decision
13.	The Employment Tribunal carefully set out their findings of fact covering the incidents complained of by the Appellant throughout her employment.  Having done so, they concluded that apart from racist language used by white typists at the Respondent’s offices in 1990, which the Employment Tribunal thought was probably dealt with appropriately by the Respondent, they found no conduct which constituted unlawful race or sex discrimination or victimisation, nor amounting to a fundamental breach of contract entitling the Appellant to treat herself as constructively dismissed in February 1998.  On the contrary, their overall conclusion was that managers about whom she complained had treated her supportively, reasonably and sympathetically.  The claims were not made out on the facts as found.

Review
14.	On 24 October 2000, out of time, the Appellant herself applied for a review of the Employment Tribunal’s substantive decision.  The thrust of her application was that she had been badly let down by her solicitors, Christian Fisher and another firm, Dalton Barrett, whom she consulted after parting company with Christian Fisher in mid-September 2000.

15.	The Chairman, Ms Hyde considered that application, extended time for making it, but dismissed it on the grounds that it had no reasonable prospect of success.

The Appeal
16.	The Appellant herself lodged a Notice of Appeal against the Employment Tribunal’s substantive decision on 26 September 2000.  That Notice was accompanied by a 9 page typed document setting out grounds of her complaint.

17.	The complaint is directed solely against the handling of her case by her various advisers, with the exception of Mr Herbert.  She makes no complaint about the Employment Tribunal’s decision, rather that the Employment Tribunal was not provided with information which the Appellant had passed to her advisers so as to reach a different conclusion favourable to her.

18.	We should, at this stage, make two obvious but pertinent observations.  The first is that our jurisdiction is limited to correcting errors of law by Employment Tribunals.  Employment Tribunals Act 1996 Section 21(1).  We are not here to carry out an investigation into the alleged failings by a party’s advisers.  The second is that incompetence or inexperience on the part of a representative will not permit a party to argue new points of law, revive abandoned points or adduce fresh evidence (subject to the test in Wileman v Minilec Engineering Ltd [1988] ICR 318).  See Kumchyk v Derby City Council [1978] ICR 1116; Jones v Governing Body of Burdett Coutts School [1998] IRLR 521.

19.	It follows that on its face this appeal is wholly misconceived.

The Second Appeal
20.	This is an appeal by Mrs Pierre against a decision of an Employment Tribunal chaired by Mr I S Lamb sitting at London (S) on 5 July 1999, dismissing her originating application brought against the London Borough of Richmond under Rule 9(3) of the Employment Tribunal Rules of Procedure 1993.  That decision was promulgated with Extended Written Reasons on 29 July 1999.

21.	The Appellant left her previous employment with Family Housing Association to join this Respondent, London Borough of Richmond, on 23 February 1998.  She commenced Employment Tribunal proceedings against Family Housing Association on 19 May 1998, the progress of which we have just referred to in our judgment in the first appeal.

22.	She commenced these proceedings by an Originating Application presented on 22 September 1998, complaining of sexual harassment, victimisation, wrongful dismissal and deductions from wages.  She was then represented by FLAC.  Her employment had ended either by dismissal or by resignation in July 1998.

23.	At a Preliminary Hearing held on 8 February 1999 this case (the Richmond case) was fixed for a 5 day hearing commencing on 5 July 1999.

24.	The first hearing in the Family Housing Association case took place before Ms Hyde’s Employment Tribunal between 19-24 March 1999, when the Appellant gave evidence.

25.	On 18 June she faxed the Employment Tribunal asking for a postponement of the hearing in the original case fixed for 5 July.  She said that her case had been badly misrepresented by FLAC.  She was suffering from stress and problems with her sight; she needed fresh legal representation and she produced a doctor’s statement dated 19 April 1999.  She said she was currently covered by a doctor’s statement for stress and anxiety from 13 July 1998 until 13 July 1999.

26.	The application was opposed by the Respondent, who pointed out that Counsel had been briefed to attend on 5 July; their witnesses were warned to attend and those witnesses were under stress and anxious that the case be resolved.  All her allegations were denied.

27.	An Employment Tribunal dismissed her application by letter dated 25 June.

28.	On 28 June an organisation called the Monitoring Group wrote to the Employment Tribunal on the Appellant’s behalf.  They asked that the refusal to order a postponement be reconsidered, enclosing a fresh medical certificate stating that she could not attend the Employment Tribunal. That application was in turn rejected by a letter dated 2 July

29.	On receiving that letter a third application was made for a postponement which was considered by the Lamb Employment Tribunal on 5 July, the Appellant then not appearing and being unrepresented.

30.	Having considered the matter that Employment Tribunal concluded that the adjournment application should again be refused.  As to the Appellant’s medical condition they noted that although her state of health as medically certified in June was the same as it had been in March, she had then been able to attend the Tribunal in the Family Housing Association case and give evidence.  In these special circumstances they were not persuaded that she was medically unfit to attend the Employment Tribunal in July.  They did not accept that her case had not been properly presented by FLAC.

31.	Accordingly, they proceeded under Rule 9(3) to consider the Originating Application and read the 10 witness statements prepared by the Respondents, not requiring that evidence to be given on oath, an option available under Rule 9(4).  Having done so they decided to dismiss the complaint.

32.	An application for a review of that decision was considered by a tribunal consisting of the same lay members, but with a different Chairman, Mrs J Gilbert (Mr Lamb having in the meantime transferred to a different Region as Regional Chairman) on 1 December 2000.  That application was dismissed for the reasons given in a review decision promulgated on 12 December 2000.

33.	Against the original decision to dismiss her complaint Mrs Pierre appealed by a Notice settled by solicitors, J R Jones and dated 9 September 1999.  The appeal was simply based on perversity.

34.	We bear in mind that it is normally inappropriate for an Employment Tribunal to go behind a medical certificate.  However we think this case was exceptional.  The Tribunal had evidence before them that at a time when she was certified unfit the Appellant was in fact able to attend and give evidence in her earlier case brought against Family Housing Association in March 1999.

35.	In these circumstances we think it was open to the Lamb Tribunal to proceed to consider the case under Rule 9(3) and either to adjourn the matter or to dismiss the complaint having considered the contents of the originating application and the witness statements of the various witnesses whom the Respondents were prepared to call.

36.	We also bear in mind that in this particular case the Appellant was given the opportunity to reopen the matter at the review hearing held before Mrs Gilbert’s Employment Tribunal.  Having considered the representations then made for sound reasons that Tribunal dismissed the review application.  There is no appeal against that review decision.

Adjourning the Appeal Proceedings
37.	Against that background, we have considered the Appellant’s renewed application to adjourn both these preliminary hearings.  She made application by letter dated 29 May for a stay of these appeal proceedings enclosing a certificate from her general practitioner dated 8 May 2001 which simply states that she should refrain from work for 3 months due to stress and anxiety.  There is there no opinion as to whether or not she is fit to attend this hearing.

38.	That application was refused by the Registrar by a letter dated 1 June who directed that the matter remain in the list for hearing today although making it clear that it was open to the Appellant to renew the application at today’s hearing. 

39.	Having received that letter the Appellant wrote again to the Registrar on 6 June again advising the Registrar that due to her poor state of health it was not possible for her to continue these proceedings at the present time and in support of her application that the proceedings be stayed she enclosed a letter from her general practitioner dated 9 November 1999.

40.	That letter from Dr de Sousa records her attendances at the surgery in 1999 and repeats the Appellant’s complaint of stress and anxiety and refers to the sedatives, which were prescribed to her.  Dr de Sousa concludes:

“Your current mental state seems certainly to have been precipitated by stress and this seems to have originated from the working environment.”

41.	On 13 June the RCJ Advice Bureau wrote to the Employment Appeal Tribunal indicating that Mrs Pierre had consulted them and stating that it would be of assistance if these matters could be adjourned pending consideration of her application for representation by the Bar Pro Bono Unit.

42.	On 14 June the Registrar replied indicating that the matter would remain in the list for today and again advising the Appellant that she could renew her application today, further pointing out that the Appellant qualifies for and has been advised to seek pro bono help under the ELAAS Scheme.

43.	We note that Counsel was present at court today to provide such advice had the Appellant attended for that purpose.  Against this background it seems to us that we must consider the following factors.  First, it is not in the interest of justice generally for appeals before this Employment Tribunal to be stayed indefinitely.  Secondly whilst we have sympathy for the Appellant’s medical condition we cannot overlook the interest of the Respondents to these 2 appeals.

44.	The principle of finality in litigation is an important one.  The Respondents are entitled to know whether these appeals are to be disposed of at the Preliminary Hearing stage or whether they must prepare for a full appeal hearing.

45.	In view of the history of the Appellant’s medical condition and her ability to attend the Employment Tribunal in the Family Housing Association case notwithstanding her long standing stress and anxiety we think that we should proceed to consider the appeals today.

46.	For the reasons which we have given in relation to each appeal it seems to us that neither discloses any arguable point of law and in those circumstances we shall dismiss both appeals at this stage.