Appeal No. UKEAT/0203/09/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 August 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MS D MERELIE	APPELLANT

NEWCASTLE PRIMARY CARE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - ALL PARTIES

	APPEARANCES

For the Appellant	MS R TUCK
(of Counsel)
(Appearing under the Employment Law Appeal Advice Scheme)	
For the Respondent	MR S GOLDBERG
(of Counsel)
Instructed by:
Messrs Eversheds LLP Solicitors
Central Square South
Orchard Street
Newcastle upon Tyne  NE1 3XX	

SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Appellate jurisdiction/reasons/Burns-Barke

The Claimant dentist was dismissed in 2001 after an irreparable breakdown in working relationships from 1998. The Employment Judge struck out her claims as firm findings in her High Court claims at a three week trial in 2006 meant there was no reasonable prospect of her succeeding on unfair dismissal and a fair trial of that and disability discrimination was impossible in 2009. The Respondent operated the correct disciplinary procedure. Application to amend the Notice of Appeal refused: Khudados applied. Appeal dismissed.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about the striking out of claims for unfair dismissal and disability discrimination.  I will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Claimant in those proceedings against the reserved judgment of Employment Judge Garside, sitting alone at Newcastle upon Tyne on 17 October 2008 with reasons given on 10 February 2009.  No issue is taken as to the gap between those two dates.

3.	The Claimant represented herself.  Today she has the advantage to be represented by Ms Rebecca Tuck of Counsel, providing her services under the ELAA Scheme, the Respondent being represented throughout by Mr Simon Goldberg of Counsel.

4.	The Claimant made claims against her employer of unfair dismissal and unlawful disability discrimination.  The Respondent contended it dismissed her fairly for misconduct or for some other substantial reason which was, effectively, an irreparable breakdown in relationships at work. It argued that there was no discrimination and any adjustments required were taken into account and, in any event, its conduct was justified. 

The issues
5.	The issues at the PHR, now subject of this appeal, were the following:
“2.1  the respondent makes an application for the claims made by the claimant to be struck out under the Employment Tribunal Rules of Procedure rule 18(7)(b) as having no reasonable prospect of success, not being actively pursued 18(7)(d) and 18(7)(f) that it is no longer possible to have a fair hearing.
2.2 the claimant makes application for ‘a ruling’ that the respondent used the wrong disciplinary procedure when dismissing her
2.3  the claimant makes application that the findings of fact in the judgment of Underhill J in the High Court case brought by the claimant against the respondent are relevant to her claim and to ‘rule’ whether the findings are binding on the Tribunal
…
The claimant has brought two claims one of unfair dismissal and the other of disability discrimination.  The respondent has conceded that the claimant was, at the relevant time, a disabled person as defined by the Disability Discrimination Act 1995.  The respondent, however, is not contending that the disability discrimination claim has no reasonable prospect of success as this was not subject to findings in the High Court judgment.”

The Employment Judge decided in favour of the Respondent’s applications to strike out and rejected the Claimant’s application for a ruling on the grounds that it is not well-founded.

6.	The Claimant appeals. HHJ Serota QC ordered a preliminary hearing at which the Respondent was entitled to attend and to make written submissions. His reasons relate to the striking out of the claims on the grounds of delay and the correctness of the Employment Judge’s ruling on the disciplinary procedure point.  It follows that he did not consider there were reasonable prospects of success in either point, but did not consider that there were grounds for dealing with the matter summarily under Rule 3.

7.	When I read the huge volume of papers it occurred to me that since what was sought was a full hearing and then remission to an Employment Tribunal, it might be cost-effective if I were to convert this preliminary hearing to a full hearing.  That of course has advantages and disadvantages.  It lowers the threshold for the Claimant since what she has to show is reasonable prospects of success rather than actually succeeding, but it exposes the Respondent to the possibility of two hearings rather than one. Both accepted my invitation but a technical difficulty has arisen.  This remains a preliminary hearing. I have to say that all the points which could be taken on the Claimant’s behalf at any level have been taken by Ms Tuck and have been developed during the course of this extended preliminary hearing.

The legal principles
8.	The procedural aspect of the legislation is found in Rule 18 of the Employment Tribunal Rules which provides for a judge at a PHR to:
“(2) …
(a) determine any interim or preliminary matter relating to the proceedings;
…
(d) consider any oral or written representations or evidence …”
and to make an order
(7) … 
(b) striking out … all or part of any claim … on the grounds that it … has no reasonable prospect of success;
(d) striking out a claim which has not been actively pursued;
(f) striking out a claim where the chairman or tribunal considers that it is no longer possible to have a fair Hearing in those proceedings.”

That jurisdiction has been the subject of a good deal of attention, most recently in judgments of the Court of Appeal in Blockbuster Entertainment Ltd v James [2006] IRLR 630, North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 and Abegaze v Shrewsbury College of Arts and Technology [2009] EWCA Civ 96.

9.	Since this is the Health Service and involves a medical practitioner, a national procedure is in place known as HC 90(9) of March 1990 dealing with discipline for dentists, categorising cases involving personal conduct, professional conduct and professional competence, respectively. It is a contractual term of the Claimant’s relationship that where professional conduct or competence is invoked HC 90(9), with its attendant safeguards of a quasi-judicial proceeding, conducted in part by adjudicators from dentistry will apply. Otherwise the Respondent’s own disciplinary procedure is used.

10.	The Employment Judge directed himself in accordance with Rule 18 and also Blockbuster and Ezsias, in which, broadly speaking, Tribunals are directed to use with great care Rule 18 to strike out discrimination and whistleblowing proceedings since it is, in a pluralistic society such as ours, the right of parties to have their cases vindicated: see the speech of Lord Steyn in Anyanwu and Other v South Bank Student Union and Another And Commission for Racial Equality [2001] ICR 391.There may be different conditions applicable to unfair dismissal but I heard no separate arguments about that and I will take the approach, from those three cases.

11.	The proceedings which developed before the judge involved applications by the Respondent to strike out the claims of the Claimant on the ground that they had no reasonable prospect of success, that they had not been actively pursued and that no fair hearing was possible.

12.	Separately, a ruling was sought by the Claimant as to the relevant disciplinary procedure. It was her case that the Respondent, in the actions which I will describe, had operated outside HC 90(9), that being the correct procedure since allegations of professional conduct and competence had been made and should have been tried in that forum and not in the Trust’s disciplinary procedure.

The facts
13.	The summary chronology relevant to these proceedings is:
•	1998-99 issues raised
•	2000 Claimant suspended
•	2 to 3 May 2001 disciplinary hearing
•	3 May 2001 effective date of dismissal
•	1 August 2001 originating application presented
•	23 August 2001 notice of appearance presented
•	4 and 5 September 2001 internal appeal concluded
•	3 December 2001 case management discussion
•	17 December 2001 further and better particulars provided by the claimant in respect of disability
•	December 2001 to August 2002 claimant underwent medical examination to determine whether she was a disabled person
•	9 September 2001 the Respondent disability
•	26 September 2002 a 5 day hearing is listed for 28 April to 2 May 2003
•	22 April 2003 the hearing is postponed because of the Claimant’s ill health as medically certified
•	20 December 2003 the Claimant informs the Tribunal that she has issued High Court and County Court claims for personal injury, defamation and breach of contract
•	3 May 2004 the Tribunal proceedings are stayed pending the conclusion of the High Court cases
•	28 April 2006 both parties agree that the High Court proceedings have been concluded
•	13 June 2006 the listed telephone case management discussion was postponed as the Claimant was too ill to attend.  A medical report was submitted
•	14 June 2006 the High Court judgment is handed down
•	9 May 2008 a case management discussion when the claimant represented herself.  She indicated that she was prepared to continue with the proceedings in the Tribunal
•	10 February 2009 claims struck out
•	June 2009 putative trial date

14.	At this PHR the judge heard live evidence and the principal witness for the Respondent, Mr Canning, gave evidence.  I make this point because on a strike out under the CPR such does not occur.  The chronology is startling and it has been elongated by the Claimant’s decision to divert proceedings into the High Court, her illness and procedural difficulties. The judge was considering whether a trial could be conducted which he postulated to be ready in June 2009, even later, now.

15.	There is no criticism of the delay in this case because the Respondent’s application, based upon the Claimant not actively pursuing the case, was rejected by the judge. But, as a matter of fact, the Claimant’s decision in December 2003 to issue claims to the High Court and the County Court led to a Judgment in June 2006 and during the whole of that time proceedings in the Tribunal were stayed.

16.	Employment Judge Garside paid a good deal of attention to the High Court action.  The Claimant was tried by Underhill J, a judge whose considerable employment experience was plainly recognised on his promotion to presidency of this court. He was acutely aware of the relationship between the issues raised by the Claimant in the claims before him and the proceedings in the Employment Tribunal.  It led to a judgment in small font of 57 pages after a three week trial.

17.	The Claimant was unrepresented.  The claims were made against, by this stage, 10 or 11 individuals and her employer.  Some claims against some defendants had been struck out by, respectively, Eady J and Tugendhat J paving the way for two claims to be adjudicated in the High Court.  They were claims in contract and tort and claims for harassment and defamation.  Underhill J dismissed them all.  In doing so he made a very substantial number of findings about the facts which govern the relationship between the parties in this dispute.

18.	As a result of his findings the Respondent launched its applications for strike out.  The material available to the Employment Judge included Underhill J’s judgment, the live evidence which he heard and submissions made by the Claimant and on behalf of the Respondent.  He concluded, having looked at the relevant authorities, that the claims in the High Court had a significant overlap with the Employment Tribunal claims and that there was no reasonable prospect of success in the unfair dismissal claim.

19.	He also concluded that there was substantial delay between the relevant events which covered material from 1998 and 1999 to what was likely to be the putative trial date some ten years later and weighing up those matters considered that there was no possibility of a fair trial.

20.	He carried out a sustained analytic approach to the submissions of the Respondent relating to Underhill J findings.  In paragraphs 10 to 20 of his judgment he took each of the Claimant’s principal claims and reflected upon what was said about the facts relating to those claims in the High Court.  All of the facts behind those four Tribunal claims were held in favour of the Respondent and against the Claimant by Underhill J.  That was an important feature in Employment Judge Garside’s reasoning.

21.	He also considered the findings by Underhill J as to the Claimant’s professional competence and he recorded, as did Underhill J, that there was no issue about the Claimant’s technical abilities or her conduct.

Discussion and conclusions
22.	In argument before me, Mr Goldberg has carried out an even more detailed analysis and has pointed out that, in paragraphs 38, 39, 42, 175 and 195 of Underhill J’s judgment, there is clear separation of what might be professional issues from personal issues. If there were still doubts about either judge’s approach, which I do not accept there is, I will resolve it.  There was no criticism of the Claimant’s professional conduct or competence and such criticisms as may have arisen during the internal procedures were not included within any of the allegations made against her formally by the Trust nor did any such reason contribute to the decision to dismiss her in 2001.

That ought to be a consolation to her but apparently it is not.  She was dismissed because of the irreparable breakdown in the relationship. Underhill J was driven to reflect on his appreciation of the Claimant as a person and an employee.  He did so by reference to the evidence from her and others and he was critical of her.  She is an unreliable witness of the events. She clearly does not understand the juxtaposition of her own conduct with other people’s, for example paragraph 36 of Underhill J:

“36. The characteristics which I have identified above also bear on the Claimant's reliability as a witness. Her solipsistic outlook means that her accounts of both her own conduct and of other people's in any kind of contentious encounter are, while perfectly sincere, unreliable: to an unusual degree she sees, and recalls, only her own image of what occurred. Further, her rigidity of outlook does not permit her to admit that she may be mistaken; and in cases where her account is contradicted by what appears to be clear objective evidence she is forced to resort to frankly fanciful hypotheses – such as forgery, or lying by those who have no motive to lie, or witnesses having been suborned - in order to account for the contradiction.”

23.	Within those paragraphs which I have cited and with the assistance of Mr Goldberg, it is plain to me that Underhill J was finding that the procedure being operated here was that under the Respondent’s disciplinary procedure and not HC 90(9) and that that was the Employment Judge’s finding too.  It will be borne in mind that in one of her claims was of a breach of the contractual term “requiring mutual trust and confidence to be maintained”.  I indicated to Mr Goldberg and Ms Tuck that there seemed to have been no direct complaint made by the Claimant before Underhill J that as a matter of contract the Respondent had used the wrong procedure and they agreed. Mr Goldberg said that alone might give him a compelling argument at some stage that the Claimant ought not to be allowed to run the point now.

24.	My attention has been drawn to a trio of cases dealing with the relationship between personal and professional conduct and competence.  They are Skidmore v Dartford & Gravesham NHS Trust [2003] UKHL 27, Mattu v University Hospitals Coventry and Warwickshire NHS Trust [2006] EWHC 1774 and Barros D’Sa v Walsgrave Hospital NHS Trust [2001] EWCA Civ 983. In broad terms, where professional conduct or competence is a part of the criticisms, the procedure is HC 90(9).  

25.	The Employment Judge dismissed the Respondent’s contention that the delay itself contributed to the Claimant failing to properly pursue the claim and no reliance is placed upon that nor is there any cross-appeal.  That relates to Rule 18(7)(d).  .

26.	What remains is the Respondent’s point under 18(7)(b), that the claim had no reasonable prospect of success. As to that, I hold the findings of Underhill J relate directly to the unfair dismissal claim.  The three week trial covered all of the issues she will raise in her unfair dismissal claim.  Underhill J was of course astute to the fact that he was not deciding unfairness under (Part IX of) the Employment Rights Act 1996.

27.	It seems to me that Mr Goldberg is right that there is no reasonable prospect of the Claimant succeeding on a claim that her dismissal for irreparable breakdown will succeed in the light of these Very Powerful Findings Of Fact In The High Court By Which, Of Course, The Employment judge recognised that he was bound, applying Arthur J S Hall & Co (a firm) v Simons [18 December 1998] and Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 (see paragraphs 34 and 35 of the Employment Judge Garside’s judgment).

28.	Ms Tuck seeks to interleave the issue on the ruling which the judge decided in favour of the Respondent.  He did so in fairly terse terms.  Mr Goldberg had always argued that this was an inappropriate application.  If there is a defect in an employer’s disciplinary procedure, for instance if it chooses the wrong one, that will sound as unfairness in the consideration of an unfair dismissal. The Respondent was arguing that that ought to be part of unfair dismissal. I agree with that and I myself would not have considered it right for a PHR to deal with only that matter, although there is power within Rule 18(2) (above) for a PHR to determine any issue:

29.	The Employment Judge took this at face value.  He was asked by the Claimant to make a ruling and he did so against her.  The complaint which the Respondent was making against her was apt to be determined within its own disciplinary procedure and not under HC 90(9).  I see nothing wrong with that finding and it is clear from Underhill J’s judgment that the Respondent conducted the proceedings entirely properly and in accordance with its own procedures.  His judgment is replete with findings in favour of the Respondent’s articulation of the procedure.

30.	The way in which Ms Tuck presents this is that although there are findings of fact, since Underhill J did not have before him HC 90(9) and was not required specifically to make the ruling which the Employment Judge now did, it must be an argument for a trial that the Respondent got the wrong procedure and, therefore, that “feeds in” to the argument that the unfair dismissal claim was not hopeless.

31.	I disagree.  The findings of fact cover all of the territory of the Claimant’s unfair dismissal claim.  The findings relating to the subject matter are correctly categorised as personal and, therefore, within the subject matter of the procedures operated here. The Respondent was at pains to eschew any criticism of clinical conduct or competence.  As I have said that ought to have been a solace to the Claimant.

32.	Thus, the Employment Judge made a permissible decision that the unfair dismissal claim had no reasonable prospect of success. That ought to dispose of the case but he went on further to consider whether a fair trial was impossible.  Bearing in mind the judgment of the Court of Appeal in Abegaze, it is instructive to consider distinctions between that case and the present. I accept Mr Goldberg’s submission that in Abegaze the employment judge did not have the benefit of a witness but was involved in speculation as to what the evidence might be and the case was conducted on the basis of Dr Abegaze not actively pursuing his case while he failed to co-operate, a case under 18(7)(d).

33.	This involves the Employment Judge’s appreciation of whether trial can be fair.  I suggested in my own judgment in Abegaze EAT/0176/07 that the best people to decide whether a fair trial is possible are the people who are going to try it and this is an employment judge in Newcastle. I also suggested that was a matter of fact. Employment Judge Garside did consider live evidence about what was going to be possible.  He came to the conclusion as a matter of fact that the evidence would be unsatisfactory with the Respondent having difficulty in recall and he also added an important passage:
“48. It is clear from the way that the claimant has conducted this Pre Hearing Review that she has lived and breathed the circumstances, as she sees them, of her case.  There are findings by Mr Justice Underhill as to the claimant as a witness, see paragraph 36 of his judgment.  That is something that has to be taken into account.  I doubt whether the witnesses for the respondent will be able to recollect with certainty the factual situation prior to the disciplinary hearing or the disciplinary hearing and the appeal.”

In this way the judge was balancing the effect of the evidence of the Claimant already adjudged by Underhill J to be unreliable and obsessed with her case, in comparison with those who have got on with their lives and not been engaged in this matter. That too was a reason the judge gave as to the ability of the witnesses to reflect fairly on what happened.

34.	Having already disposed of the issue under 18(7)(b), the judge considered the correct principles and it was open to him to make a decision as to whether a fair trial was impossible up to ten years after the events.  I see no legal reason to interfere in respect of the unfair dismissal claim.

The disability discrimination claim
35.	The Employment Judge decided that the High Court claims had a direct impact on the claims made in the Tribunal.  That covers both unfair dismissal and disability discrimination.  Of course, the evidence of the Claimant, who is disabled as a result of depression and stress as tested by joint psychiatric opinion and accepted by the Respondent, was before Underhill J. The detailed examination which he conducted is applicable directly to the claim of unfair dismissal, for there is no mention in Underhill J judgment of her DDA claim but, as before the Employment Judge, the Claimant’s case on disability was ventilated.

36.	The Employment Judge considered the order for further particulars of the DDA claim which had been produced in the form of a witness statement.  It is plain that many of the issues which the Claimant raises, by way of disability discrimination, are those concerning working relationships, the responsibility for their souring and recognition by the Respondent that she was in a position of stress.  Those matters were before the Employment Judge when he made the decisions which he did and in that sense too, although more obviously relating to unfair dismissal, the factual material for the disability claims was before him. 

37.	Applying the objective reasonable standard, I hold that the Employment Judge is clear.  He was dismissive of the DDA claim.  The plural is used throughout yet the singular is used in the Notice of Appeal.  In terms, the Notice of Appeal is directed only at unfair dismissal.  

38.	I accept the disability appeal is one which runs entirely on the basis of Rule 18(7)(f), a fair trial not being possible.  An application was made to amend the Notice of Appeal at the outset of our proceedings to include a claim that the disability case should be the subject of a new ground of appeal.  I reject the application having shown both Counsel the relevant principles in Khudados v Leggate & Others [2005] ICR 1013 HHJ Serota QC and members. I can do no better than to use the headnote which is as follows:
“Held , … when considering an application to amend a notice of appeal, the starting point was the overriding objective, in rule 2A of the Employment Appeal Tribunal Rules 1993, to deal with cases justly; that, in doing so, it was relevant to take into account (i) whether the applicant was in breach of the Rules or the Practice Direction, and compliance with the requirement in paragraph 2(6) of Practice Direction (Employment Appeal Tribunal: Procedure) 2002, for an application to amend to be made as soon as the need for an amendment was known, was of considerable importance, (ii) the extent to which the proposed amendment would cause delay, (iii) whether allowing the amendment would cause prejudice to the other party and refusing it would cause prejudice to the applicant by depriving him of fairly arguable grounds of appeal, (iv) in some cases, whether the amendments raised a point of law which gave the appeal a reasonable prospect of success at a full hearing, and (v) the public interest in ensuring that business in the Employment Appeal Tribunal was conducted expeditiously and its resources were used efficiently; and that, applying those principles, given that the applicant was in breach of paragraph 2(6) of the 2002 Practice Direction in that she did not make her application as soon as the need for amendment was known, that the delay in making the application was excessive and without adequate explanation, and that the tribunal was satisfied that the respondents would suffer prejudice, permission to amend would be refused.”

39.	Superficially there are analogues to our own case.  The Claimant was a medical practitioner and the proceedings were before the EAT at a preliminary hearing.  What Ms Tuck seeks to amend is a Notice of Appeal which includes contentions aimed at the finding on unfair dismissal.  That is plain as a matter of construction and she accepts that is the case for she seeks to make the amendment to allow this appeal to be weighed against the judge’s decision to strike out the disability discrimination claim which is only based upon Rule 18(7)(f), not 18(7)(b).

40.	Having considered the factors in Khudados, this is not a case where permission should be granted.  The Claimant is in breach of the Rule, Practice Direction 2008 para 2(7) and the order fixing this preliminary hearing.  No indication was given as to when the Claimant realised that she wanted to make an application.  It should have been made before today.  The Claimant is articulate and experienced in legal proceedings and is a compulsive master of every possible aspect of her case. I have had no explanation as to why there has been such a delay. Even if I were to accept that she did not realise than a ground had to be set out in the Notice of Appeal, which I do not, there have been stages in this case when this application could have been made.  

41.	An important point is the fifth Khudados factor, the resources of the EAT and the expeditious discharge of its duties.  Judge Serota, in our case, did not have to consider whether to send this aspect to a hearing. He might have taken the view I do, and rejected it under Rule 3, and the Respondent would not have been exposed to it. The resources of the EAT have been used inappropriately in that the parties and I do not have Judge Serota’s considered opinion on it, since it was not raised.

42.	There will be no delay and there is no operable prejudice to the Respondent other than, of course, having to deal with a point which it did not previously think it had to.  This is a way of bypassing the formal requirements for a Notice of Appeal to be lodged within 42 days but more generous considerations apply for an amendment than the lodging of a notice.

43.	I regard as important the fourth factor which is whether a point of law has a reasonable prospect of success and part of my consideration in rejecting the application for an amendment is my evaluation of this.  I have been taken in detail to the way the Claimant puts her disability claim in the further particulars provided by her witness statement. I cannot see a reasonable prospect of success in that point either, in the light of the law set out by the Respondent in its response.  The factors relating to fading of witnesses’ memories and the unreliability of the Claimant which influenced the judge in making his strike out order on unfair dismissal apply to this disability claim.

44.	I have already uphold those but lest the Claimant be dissatisfied at losing this point on a technicality I would, if wrong about my decision on amendment, have come to the conclusion that the judge was right to strike out this claim as well for the reasons he gave.

Disposal
45.	This matter should now be put behind the Claimant and all those other people she has brought and kept in these proceedings over such a long period of time. I would like to thank both Counsel very much for their considerable help. The appeal is dismissed.  Permission to appeal refused [reasons not transcribed].