England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Miss Recorder Elizabeth Slade QC)

		Royal Courts of Justice Strand London WC2 Friday, 13th July 2001

Friday, 13th July 2001

1. LORD JUSTICE PETER GIBSON: Debbie Willis applies for permission to appeal from the order on 26th February 2001 at a preliminary without notice hearing of her appeal from a decision promulgated on 30th January 1997 of an employment tribunal sitting in Reading and dismissing her claim of sex discrimination and victimisation under the Sex Discrimination Act 1975. By the EAT's order her appeal was dismissed.
2. The applicant was employed as a wrapping room operator by Mars Confectionery, a division of Mars UK Ltd, under a temporary contract on 14th August 1994. Her employment ended on 17th February 1996 when her contract expired. On 21st February 1996 she made a complaint to the Tribunal of sex discrimination by the employer, alleging direct discrimination in the omission to afford access to opportunities for training and for progression and for selection for a permanent position, indirect discrimination in the employer imposing conditions and requirements for access to opportunities for selection, victimisation in the employer's failure to investigate complaints and in subjecting her to detriment because of her response to alleged harassment and discrimination. She later applied to amend her IT1. I am told by her that this was because the Tribunal had suggested that she should, no doubt as a result of the complaint of the employer in its IT3 that her claim was not particularised, although, as she said in her application, the content of her complaints remained largely unchanged. They also, it has to be said, remained unparticularised. However, the Tribunal heard her complaint at a hearing which lasted three days in October 1996 and three days in January 1997. The applicant appeared in person and gave evidence on her own behalf. She did not call any witnesses. For the employer, five witnesses gave oral evidence. The Tribunal, in a lengthy and detailed decision, considered all the complaints of direct discrimination and indirect discrimination and victimisation. It accepted the evidence of the employer's witnesses, referred to certain matters which cast doubt on the applicant's credibility and concluded:

"46The applicant has not suffered treatment which was any way near to being of sufficient gravity to be regarded as a detriment. No inferences of discrimination can be drawn from any primary facts. The respondent has investigated her complaints most fully and at considerable time and expense.

47The applicant has not made out her case of sex discrimination and victimisation on the balance of probabilities and her claims are hereby dismissed."

3. The applicant then appealed to the EAT. I have not been supplied with a copy of her notice of appeal, but another document received by the EAT on 9th July 1997 appears to have been a particularisation of what would have been paragraph 6 of the notice of appeal giving the grounds of appeal. That document stated that:

"The grounds upon which this appeal is brought are that the Industrial Tribunal erred in law in that:

1.During the course of the proceedings it emerged that the Respondents had knowingly and deliberately failed to comply with an earlier order for full disclosure of relevant documents prior to the hearing. ...

Three full bundles of documents were made available to myself only after I had completed my evidence and I was half-way through cross-examination of the Respondent's second witness.

2.I am unable to detail the various other points of law which arose out of this procedural defect at this time as my advisors are on annual leave. However, it is my submission that my first point is sufficient to satisfy the Tribunal that my case should be allowed to proceed to a full hearing. I am, of course, aware that extensive detail will be required prior to such a hearing taking place."

4. It was about this time that the applicant sought advice from the Citizens Advice Bureau (the "CAB") in Slough. That document, to my mind, plainly appears to have been drafted with the assistance of someone who knew his way around litigation.
5. In a subsequent letter of 7th March 2001 the applicant refers to having sent a letter giving further and better particulars dated 7th July 1997. That document has also not been produced to me, but it would appear from the fact that the document, the terms of which I have just read out, was received a few days later that those were the further and better particulars in question. That leads to the inference that the EAT had said to the applicant that the grounds in her notice of appeal were inadequate because of lack of particulars.
6. On 12th November 1997 the applicant appears to have written to the EAT requesting that the matter be reheard. I have not seen that letter. Morrison J directed that it be relisted, but, regrettably, due to an administrative oversight, the case was "put away".
7. The applicant appears to have written again to the EAT on 3rd April 2000 -- again, I do not have that letter -- as a result of which the appeal was restored to the list and came on for the usual preliminary hearing attended by the applicant alone, when the EAT considered whether the appeal should go to a full hearing to be attended by the employer.
8. For the preliminary hearing the applicant, appearing in person, produced a substantial skeleton argument which did not deal with what was contained in the grounds of appeal which had been received on 9th July 1997 by the EAT, but instead sought to challenge many of the findings of fact made by the Tribunal. At the hearing the EAT asked whether she had applied for leave to amend her grounds of appeal. She replied that she had not done so personally but that she believed that those advising her had done so on her behalf. She was told that no such application had been received. The EAT refused to allow her to argue the points which had not been raised in her grounds of appeal received on the 9th July 1997.
9. In a brief judgment, the EAT dealt with the point relating to disclosure of documents which had been raised in the grounds of appeal received on 9th July 1997. I need not go into what the EAT said, as that matter is no longer pursued. Indeed, it was not even the subject of argument, it appears, in front of the EAT as the applicant has told me that she abandoned that point, despite her written submission, as I have noted, that that point was sufficient to satisfy the EAT that her case should be allowed to proceed to a full hearing. Two days after the EAT gave its judgment the applicant wrote to the EAT, saying:

"The Panel enquired as to whether I had applied for leave to amend my `EAT 1' and my response was that I had not done so personally. However, it has transpired upon making further enquiries that the Citizens Advice Bureau had applied for leave to amend on my behalf and have now supplied me with a copy from their files. (enclosed)

It appears that the said application would have been received by the Tribunal in early March 1998... .

...

I had not seen a copy. My adviser ceased to work for the CAB around that time and I decided to present the arguments myself. I attended the hearing on 26-02-01 presenting my skeleton arguments on the various points of law."

10. The document to which she refers is in this form. After the heading of the case:

"Application for leave to amend `EAT Form 1' Notes of Appeal from Decision of Industrial Tribunal to:-

The grounds upon which this appeal is bought are that the Industrial Tribunal erred in law in that:-

1. The Panel made findings which cannot be sustained upon the evidence

2.The Panel made findings which were in breach of the rules of natural justice

3.The Panel did not take into account all available evidence

4. The Panel misdirected itself in law".

11. Then there is the typed name "D J Willis" at the bottom right-hand corner and the date which is in this distinctive form:

"27-02-1998".

12. By her appellant's notice to this court the applicant's grounds of appeal are that:

"The decision [of the EAT] was reached in breach of the rules of natural justice.

Serious procedural irregularity in the lower court proceedings resulted in the applicant not being given adequate opportunity to put her case."

13. In her skeleton argument she has made clear that her complaint was that the EAT did not allow her to put the case which she had set out in her skeleton argument placed before the EAT but confined her to the grounds of appeal which were received on 9th July 1997. She further complains in her affidavit, which she has put before me, that the EAT had a bundle of documents which she did not have prior to the hearing. What appears to have happened is the usual practice in accordance with paragraph 6(1) of the Employment Appeal Tribunal Practice Direction, that the EAT had prepared a bundle of documents for the EAT members alone.
14. There is no obligation on the EAT to prepare a bundle for the litigant. The Employment Appeal Tribunal Rules 1993 require the service within a limited time by an appellant of certain documents, including a notice of appeal in a prescribed form; and, as I have said, paragraph 6 of that form should set out the grounds on which the appeal is brought. Those grounds are the only grounds for the appeal unless leave is obtained to amend. The notice of appeal has to be served on the Tribunal within 42 days from the date on which the Tribunal's decision was sent to the appellant. The EAT Registrar then sends a copy of the notice of appeal to the respondents to the appeal so that the respondents are made aware of the appeal and the grounds of the appeal. If an applicant wishes to amend the notice of appeal outside the 42-day period, application must be made to the EAT for leave. The EAT has a discretion whether to allow the amendment. This court could not interfere with an exercise of discretion requiring leave unless it was shown that the EAT had gone wrong in law, or had taken into account something which it should have ignored, or omitted to take into account something which it should have taken into account, or was otherwise plainly wrong.
15. It is hard to see how this court could properly interfere with the exercise of discretion by the EAT on the material before it. The applicant had deliberately confined herself in her grounds of appeal, which the EAT had received on 9th July 1997, to a single point; and the arguments which she wished to advance to the EAT at the hearing did not relate to that point. In reply to questions from the EAT she could only say that she believed an application to amend had been made by her advisers, but she did not even produce the document which constituted the application although she knew, or ought to have known, that there had been no response to that application which had to be determined.
16. Someone who makes an application must know that the application might not succeed. Had she wished to pursue the matters raised in her skeleton, she would have had, in my view, to seek the Chairman's notes of evidence as she was trying to appeal on the basis that there were various matters which the Tribunal had received in evidence but which had not been mentioned in the decision. But she had not applied for notes of evidence. In my judgment, therefore, on the material before the EAT, the EAT could not be criticised for not allowing her to amend her notice of appeal and not allowing her to argue the points taken in her skeleton argument. That was within the proper ambit of the EAT's discretion, and on this point she would have no prospect of success.
17. The applicant has now put before me an affidavit dated 29th June 2001 in which she says that after the EAT hearing she obtained a copy of her application for leave to amend her grounds of appeal from the files of the CAB, who had been advising her previously. She says:

"It transpired that the application had been sent to the EAT on 27th February 1998. However, on 19th February 1998 the EAT had `filed my application away in error due to an administrative oversight'. It is my belief that my application for leave to amend the EAT 1 form had been misplaced by the EAT in consequence."

18. She has put before me some of the correspondence she has had with the EAT. I have referred to the letter that she sent two days after the hearing before the EAT and it is unnecessary to repeat it. In that letter she was asserting that the CAB had made the application in a form of which she had not seen a copy and that, as her adviser had ceased to work for the CAB, she presented the arguments herself, the implication apparently being that the CAB adviser would otherwise have represented her. The document which is central to her case is that bearing date 27th February 1998.
19. I have to say that I have the gravest doubts as to whether what the applicant says occurred can be accepted as correct. I say that for the following reasons:

(1)The CAB, as its name implies, is an adviser of litigants, or would be litigants. I have never heard of a CAB acting for a litigant; and the applicant herself says that it was only her adviser. Inconsistently with that, she asserts that it made the application to the EAT in the form of the document bearing date 27th February 1998.

(2)No evidence whatever from the CAB as to its role in this matter has been produced by the applicant. She tells me that she was told by someone in the CAB that a Mr Reed, who had been her adviser, had sent the application dated 27th February 1998. When I asked how that person knew, she said that there must have been a note on the file. No evidence of this is produced. The application itself shows nothing of the CAB's involvement and, as I have indicated, it is a document bearing only her name "D J Willis", at the bottom.

(3)By a letter dated 5th March 2001 to the applicant the EAT's Registrar makes clear that no such document was ever received. If it had been received, its inadequacy as grounds of appeal would have been obvious to the EAT. True it is that there has been a hiccup in the administration in the EAT between 1997 and 2000, but the file after being put away was plainly recovered and there is no reason to think that any letters pertaining to it have not been put in the file. There is no possibility of the applicant establishing that the EAT must have received this application.

(4) The document itself seems to me to bear clear indications that, so far from being a document of the CAB, it was the applicant's own document. I refer to the following indications:

(a) The type is identical to that used by the applicant in her correspondence put before me.

(b)The first sentence refers to "`EAT form 1' Notes of Appeal". That is unintelligible. Presumably "notice of appeal" was what was intended. I cannot believe that the CAB would have allowed such a document to be produced and sent to the EAT.

(c)The grounds of appeal are wholly unparticularised and could never have been allowed to stand without particularisation.

(d)The reference to "the Panel" is not one which any lawyer or person experienced in litigation would use to describe the Tribunal or the EAT, but it is how the applicant repeatedly describes those bodies. Also it is in marked contrast to the grounds of appeal which were received by the EAT on 9th July 1997, which conventionally refers to `the Tribunal'. The applicant tells me that that document was her own draft. All I can say is that the contrast between that document and the document bearing the date 27th February 1998 is very marked.

(e)The document is dated in the somewhat idiosyncratic way "27-02-1998", but the applicant uses that way of dating documents in other documents which she has produced to me.

20. I am therefore unpersuaded by the evidence which has been put before me that such a document was ever received by the EAT. Indeed, I have to say, I very much doubt if that document was ever sent, although the applicant tells me that her own PC had broken down and that this is a document of the CAB. The indications point the other way. Further, she did not follow up that application in any way. She herself should have pursued the matter rather more speedily than she did. I do not excuse the EAT's administrative errors, but I am afraid that I simply cannot be satisfied that the document was one which had been received by the EAT in or about February 1998. Accordingly, that evidence is not sufficient to enable me to say that she would have a realistic prospect of success on an appeal on the ground that that document must have been received by the EAT.
21. Her other complaint about the bundle of documents not being supplied to her by the EAT until the hearing is, I am afraid, based on a misunderstanding of what an appellant must do to prepare documents for the EAT and as to the role of the EAT in preparing documents for its own members but not for the parties.
22. For these reasons, it seems to me that there is no real prospect of success on an appeal, nor has any other compelling reason been shown why this appeal should be allowed to go ahead. Accordingly, I am afraid that I must dismiss this application.
Order: Application dismissed.