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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Wright v. Daimler Chrysler Rail Systems (UK) Ltd (t/a Adtranz) [2002] UKEAT 0463_01_1503 (15 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/0463_01_1503.html Cite as: [2002] UKEAT 0463_01_1503, [2002] UKEAT 463_1_1503

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APPEARANCES

 

For the Appellant	MR CHARLES CROW (Of Counsel) Instructed by: Messrs Flint Bishop & Barnett Solicitors Royal Oak House Market Place Derby DE1 2EA


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a Preliminary Hearing or, more strictly, an adjourned Preliminary Hearing, the appeal of Mrs Claire Wright in the matter Wright v Daimler Chrysler Rail Systems (UK) Ltd t/a Adtranz. This morning Mr Crow has appeared for Mrs Wright.
2. On 6 July 2000 Mrs Wright presented an IT1 for unfair dismissal and for sex discrimination. She identified solicitors as acting for her. She said that she had been employed from 13 October 1997 to 28 April 2000.
3. She said that her contract of employment was terminated, allegedly by reason of redundancy, with effect from 28 April 2000. It is her case that in fact the termination of her contract amounted to unfair dismissal and sex discrimination. She believed that she said that, during her sickness absences arising from her pregnancy, senior managers employed by the Respondent Company had taken a decision to consider ways of terminating her contract of employment for reasons related to her absences but without making this clear to her.
4. She said that following the termination of her contract of employment she had become aware that the position in which she was latterly employed has been re advertised by the Respondent company and she said that she therefore believed that the circumstances of the termination of her contract amounted to both unfair dismissal and sex discrimination and she then gave particulars of her claims.
5. On 25 July 2000 the Respondent Company put in an IT3. They said that in December 1999 the Respondent had commenced a global reorganisation. This reorganisation affected the IT Department, in which the Applicant was employed as an IT Specialist working on the year 2000 project. On 7 December 1999, the Company asserted, the Applicant, in common with all other IT Specialists, was informed that her position would not exist in the new organisation. A letter also enclosed details of positions within the new organisation which the Applicant could apply for. She was also informed that volunteers for redundancy were being sought.
6. In their paragraph 8 the Company said:

"On 26 January 2000 the Applicant was written to and informed that she would be offered the position of Media and Events Co-ordinator within the Sales and Marketing Department on a temporary basis until June 2000. This gave the Applicant the opportunity to remain within the Company to apply for any internal vacancies that arose during this period. It was however apparent that Claire would not be able to take over the full scope of the role. However there were parts of the role that the Applicant was able to do and there was an immediate requirement for this work to be done.

The Applicant was informed that if she were unsuccessful securing alternative employment within the Company during this period then the normal redundancy arrangements would apply. The Applicant accepted this temporary position on 28 January 2000."

And then they said in their last paragraph:

"The reorganisation of the IT Department and subsequent selection for employment did not take into consideration absence of employees. The Applicant's absence record therefore was not a relevant factor in determining her selection for redundancy or her suitability for alternative positions within the Company. The Applicant's redundancy was from the position of IT Specialist not from that of Media & Events Co-ordinator. Her employment as Media & Events Co-ordinator was an agreed extension to her notice period to allow her to seek alternative employment. The Respondent contends that the applicant was fairly dismissed for redundancy and was not subject to any detriment on grounds of her sex."

7. So, that was how this case was shaping up to be fought and on 1 February 2001 there was a hearing at the Employment Tribunal but in circumstances we will come back to. Mrs Wright was in person at that hearing.
8. On 23 February 2001 the decision of the Tribunal was sent to the parties. It was the decision of the Tribunal at Nottingham under the chairmanship of Mr D Price and the unanimous decision of the Tribunal was that the dismissal was not unfair and that the Company had not discriminated against the Applicant on the ground of her sex.
9. On 26 March a Notice of Appeal was received at the Employment Appeal Tribunal. It can fairly be described as a homemade Notice of Appeal. It is in manuscript, presumably that of Mrs Wright, and in paragraph 6, which is where the grounds of the appeal are required to be set out, she says:

"That fundamentally, I didn't get a fair trial as I had to defend myself on the days as my Solicitor backed out the day before. I wasn't given the chance of a stay of execution as requested due to my ill health. As made aware to the Tribunal, I have on-going health problems due to the way I was treated at Adtranz & by my violent ex-husband. I am being treated medically for severe depression, anxiety & panic attacks, thus not being in a fit state at the trial."

She amplifies that but that is the way she puts it by way of summary. That, as I say, was received on the 26 March 2001.

10. On 22 June there was the first Preliminary Hearing here at the Employment Appeal Tribunal and the Order made that day gave leave for an amended Notice of Appeal. It ordered that Mrs Wright should lodge an Affidavit in support of her complaint as to the Tribunal's refusal to adjourn the matter. It ordered that on receipt of the Affidavit a copy would be sent to the Chairman, Mr D Price, for his comments and that, after the Chairman's comments and the Affidavit had been received, the Respondents, Daimler Chrysler, would have the opportunity to comment on what had been received.
11. On 12 July 2001 Mrs Wright's Affidavit was received and there are some passages from that which we need to cite. She says in her paragraph 13:

"I was then called by David Clark (that was the solicitor who she had thought was going to appear for her) to attend a third meeting at his offices at 10.00 am on 31 January 2001, the day before the Tribunal was to commence. That meeting only lasted some 20 minutes.

Mr Clark was clearly not comfortable. He asked me to sit down and stuttered and stammered his way through as he said, as closely as I can recall, "I am not going to represent you tomorrow". He had given me absolutely no indication at any time previously that he did not want to represent me. Until he made that announcement I had thought that the reason for my coming to that meeting was to discuss what was actually going to happen at the Tribunal."

And then at paragraph 17 she says:

"Not only did David Clark tell me that he was not going to represent me but he actively tried to put me off pursuing my application by saying that ADTRANZ was a big company and that I may as well drop my application. He did not go into detail but basically he said that I was not going to get anywhere and why did I bother.

My reaction was to say was that I had come that far and I had nothing to lose and so I was going to go anyway. I asked him if I could have the file of papers as I wanted to close the meeting as I thought that something strange was going on."

12. That evening, she says in her paragraph 23 she telephoned Mr Sean Reynolds, a Senior Specialist Employment Solicitor of the firm Hempsons in Manchester, and she then, in her paragraph 24, says what he said to her:

"He also mentioned various other points. He told me there was no way that in my state of mental health that I could represent myself at the Tribunal the following day and there was no way because of the time involved that either he or another Solicitor would be able to represent me. He explained that I should attend the Tribunal and should ask for a stay of execution which was something that I was legally entitled to do."

Pausing there, it seems unlikely that he said "stay of execution". He might have said "should ask for an adjournment". She continues in her paragraph 25:

"I accepted Mr Reynold's advice and attended the Tribunal. I had no previous Court experience."

13. Then in her paragraph 28 she says, having got the bundle from Mr Clark:

"When I had looked in the bundle on receiving the file back from David Clark I had seen that several of the documents which I thought were relevant and should have been included were not. In particular there were two documents, an e-mail dated 5 November 1998 which suggested that my employers wished to terminate my employment lawfully albeit for an unlawful reason, an organisational chart from which the Tribunal would have been able to conclude that I did possess skills which my employer had claimed that I did not have."

14. She then speaks of her discussion with the other side at the Tribunal, before the hearing came on, and she says:

"Mr Johnson (and he was conducting the case for ADTRANZ) had 5 witnesses from my employers together with another lady I did not know. I was asked to speak and following Mr Sean Reynolds advice asked for a stay of execution (and again it seems unlikely that was what she asked for) giving the reasons as advised by him. I outlined that my legal representative had withdrawn the day previously and the Chairman did not give any indication that he was aware of that. He did not comment on it."

In her paragraph 31 she says:

"I told the Chairman that I had mental health problems and gave the background of my problems including my violent husband. I explained that having been made redundant I was struggling to cope and as a result I was on medication, anti-depressants and tranquillisers and also medication for an irritable bowel which was all part and parcel of the same problem."

In her paragraph 33 she says:

"I explained that I had been advised that I should request a stay of execution. The Chairman's response was to say to me "we are all here now, we may as well get on with it". I had to accept what the Chairman said simply because he was the Chairman and I had no experience of such matters."

And then in paragraph 35 she says:

"The hearing lasted the full 2 days throughout which I acted entirely on my own behalf without any legal representation."

In paragraph 36 she turns to the e-mail that she had earlier mentioned; she says:

"I did mention during the hearing the e-mail which I considered to be an incriminating document and also made reference to the organisational chart which showed that I would have been a suitable for two alternative jobs on offer one of which was a side move and one of which was a move to a lower grade post. The documents however were not available to the Court and therefore could not be produced."

15. So, that gives some detail as to the flavour of the facts which Mrs Wright wished to have relied upon. She produced some documents to us, one of which was a doctor's certificate of 4 July 2001. It says:

"This is to confirm that the above patient has been suffering from depression since January 1999. I have been her GP since November 2000 and she has been off work with depression since then. She was off work from April 2000 (previous GP)

Her current medication is:

AMITRIPTYLINE 50mg one tablet a day

FLUOXEYTINE 20 mg one tablet twice a day

She was on this medication in January + February (when, I believe, she was due to attend a tribunal).

I saw her, amongst other dates, on 18.1.01 and 7.2.01 when she felt depressed."

And he ends up saying she is currently still not well enough to work.

16. She exhibited the e-mail of 5 November 1998 to which she had earlier referred. It is to be remembered that it is speaking to a time a good bit before her ultimate dismissal on 28 April 2000. It says:

"The only way to recruit a replacement is for her employment to be terminated. Do you have a suggestion as to how this could be done within the constraints of employment law? We are in serious danger of embroiling ourselves in an unpleasant unfair dismissal case on this one if we are not careful and I for one would not like to defend the company in a tribunal against a pregnant woman!!"

17. She also produces the organisational chart. It is headed "ADTRANZ – Service Delivery Organisation" and has a series of boxes indicating a structure. That Affidavit having been received and exhibits with it, the Chairman, as the earlier order of the Employment Appeal Tribunal had contemplated, was asked to give his comments and he did that by letter of 31 August 2001. He begins by saying:

"The applicant appears to think that the only reason we refused her application for an adjournment was because we had considered that, as all the parties were present, we might as well get on with it. Nothing could be further from the truth."

18. And then he makes a number of points including these. First of all that the Employment Tribunal recognised her apprehension and that she had been let down by her solicitor but they noted that a witness statement had been prepared by her solicitor as her evidence in chief and that was put in. They make the point that Employment Tribunals are well used to attempting, usually successfully, to put parties, especially litigant in persons, at their ease. The Chairman indicated that she gave the impression at the time of being well able to put across all the points she wished to make. The Chairman says the decision not to adjourn was not final; if she had been seen to be unable to cope the Tribunal would have reconsidered the question but, as it transpired the Tribunal did not feel that they needed to. The Chairman says that the Tribunal did have the e-mail of 5 November 1998 in front of them but that it was as to an earlier date than the more material later events and that the Tribunal spent a considerable time looking at the issue of the possibility of alternative employment for Mrs Wright. It will be remembered that the process that was contemplated was that then the papers would be sent to the representative who had acted for the company on the day. That was a Mr Craig Johnson and he, on 8 October 2001, put in observations including a number of points such as that he had not understood the case to be that all along Mrs Wright's solicitor would actually appear at the hearing. As to that, Mr Crow points out that in effect it is Mrs Wright's understanding that is more material and that there was no adequate basis for Mr Johnson's understanding. We do not need to go into that because what Mr Johnson understood on that issue is hardly of any great importance, but he does say that Mrs Wright on the day did assert personal health difficulties and that she was listened to sympathetically. He says:

"The Tribunal spent some time considering the extent to which Mrs Wright's case had been prepared and noted the involvement of her solicitor in this.

The Chairman explained in some detail to Mrs Wright the Tribunal procedure.

I clearly recall that the Chairman specifically asked Mrs Wright if she was content to proceed and she replied that she was although I note that this is not recorded in Mr Price's letter to the EAT. However, my recollection is confirmed by Joanne Gaunton (Human Resources Manager), Clem Jackson (Personnel Manager), and Kathryn Lancaster (Communications Manager), employees of the company, all of them were in attendance at the hearing.

I do not now recall the exact words but Mrs Wright also commented to the effect that she was prepared to speak for herself as she considered herself to be a confident and articulate person, which indeed she was.

In addition to explaining in some detail to Mrs Wright the tribunal procedure, I recall that Mrs Wright was told that if she felt unable to proceed at any stage that she should inform the Tribunal.

The Tribunal called an adjournment to allow Mrs Wright to prepare her case"

Then a little later he says:

"In summary, I would say that the tribunal considered in some detail the points Mrs Wright and I raised. They conferred amongst themselves and, having carefully considered the extent to which her case had been prepared prior to the hearing, reached a reasonable decision to continue. Furthermore, Mrs Wright expressly consented to this decision."

And then he comments on the e-mail:

"Mrs Wright implies that this document was not considered by the tribunal. This is not the case. This e-mail was in the Bundle at the Hearing at page 47b as Mr Price notes in his letter. It was referred to by the Applicant and considered by the Tribunal during the Hearing. The organisational chart referred to by the Applicant in her Affidavit was not considered at the Hearing. However, alternative positions that may have been suitable for the Applicant were considered in some detail and a considerable amount of evidence was given by the Respondent's witnesses with regard to this matter. There was also extensive cross-examination by the Applicant and detailed questions from the Tribunal Members."

19. The amended Notice of Appeal put in on 29 June 2001 asserts the wrongfulness of the failure of the Employment Tribunal to adjourn and makes a suggestion as to what the likely consequences would have been had the Tribunal paid attention to the 5 November e-mail and to the organisational chart. However, viewing as best we can the totality of the material put before us, we cannot hold that decision not to adjourn was an error of law. It is for the Appellant to prove that, in the exercise of the Employment Tribunal's very wide judicial discretion to adjourn or to proceed, it either took into account material which it should not have done or failed to take into account that which it should have done or otherwise erred in principle of law.
20. However, the Tribunal took into account Mrs Wright's health as represented to them. The Chairman says:

"In reaching our decision we took into account the fact that the Applicant had recently been let down by her solicitor. She had suffered problems with her health and had experienced difficulties with her husband. We fully understood her apprehensions in having to present her case to the Tribunal."

21. They had the e-mail produced to them. The Chairman says:

"The e-mail she refers to in paragraph 36 is I believe the one dated 5 November 1998. It was produced to us in Tribunal. We read it, took it into account and referred to it in paragraph 3(1) of our decision. In particular we noted that it had been sent at a time when she had had long absences from work. By the time of the termination of the Y2K project and the redundancies which followed a lot had happened. We had to weigh the relevance of this e-mail against the later events."

22. They did not have the organisational chart in front of them but they did fully consider alternative employment and Mrs Wright's suitability for it. The Chairman says:

"As to the organisational chart mentioned by the Applicant the only comment I can make is that we spent a considerable amount of time considering what job might have been available and suitable for the Applicant. I hope this is evident from our extended reasons."

23. The Tribunal formed the view provisionally that she was coping. The Chairman says:

"Our decision not to adjourn was not final if we had thought that during the course of the hearing the Applicant was not sufficiently prepared to be able to continue or if we had thought she was not up to the task we would have reconsidered the position. As it was the Applicant put her case over well when reading her statement. Her note of evidence records that she added to her written statement by, amongst other things, commenting on the witness statement of Joanne Gaunton who was to give evidence for the Respondent. This supported our original decision to proceed. The additional comments of the Applicant not only showed that she was on top of her own case but that she was fully aware of the evidence which was to be given on behalf of the Respondent. Her comments also show a degree of confidence in presenting her own case. "

The Chairman says:

"We felt she was well able to put across all the points she wished to make."

24. The question of adjournment was, as I mentioned, kept under review and we have cited the Chairman's answer on that point. We cannot regard the decision not to adjourn as perverse. Moreover, we are unable to see any breach of Article 6 in the circumstances of this case. It is, in particular, impossible to hold that the production of the organisational table would of itself have driven the Employment Tribunal to any conclusion as to Mrs Wright's skills or as to her fitness for any particular job. The chart itself cannot, as it seems to us, prove her skill or fitness and in any event the subject of alternative employment was thoroughly gone into.
25. Mr Crow has brought to our attention the case of Robert Alexander McGowan v The West Scotland Water Authority unreported but heard at the Employment Appeal Tribunal on 29 November 2001. In that case solicitors appeared at the Employment Tribunal and asked for an adjournment on the grounds that they themselves had not been adequately prepared to proceed with the case. The adjournment was refused. The solicitors walked out and the case went ahead with the litigants in person, or party litigants as they are called in Scotland, themselves requesting an adjournment and finding that adjournment refused. It is notorious that one cannot usefully gain authoritative guidance in discretionary cases by comparing the exercise of the discretion in one case with the exercise of the discretion in another. First of all, the slightest difference in the background facts can undermine the case's applicability and, secondly, one can all too easily get to a position in which - and it might be said to be the case here - that it could not have been said to have been an error of law for the Tribunal to allow the adjournment and equally it could not be said to be an error of law to refuse it. One has to recognise that there are what might be called (to use the language of another part of the law) a band of reasonable responses. We do not find, given the different factual circumstances in McGowan and bearing in mind that we are dealing with a very wide discretion, that we can gain any assistance from McGowan. All in all we are not able to detect any error of law - and one has to emphasise that alone is what we can look at - in the Employment Tribunal's decision not to adjourn, nor in the amended Notice of Appeal and accordingly, even at this preliminary stage, we must dismiss the appeal.