England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London Friday 15 February 2001

Friday 15 February 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal which arises in rather unusual circumstances. The applicant is Mrs Suman Bala Jangra. The hearing of her application, which she makes in person, was postponed until this afternoon so that she could have the assistance of an interpreter in making her submissions. In addition to the oral submissions which I have heard Mrs Jangra make directly and through the interpreter, I have also read a five-page statement which has been typed out for Mrs Jangra and was signed by her on 21 January 2002. In the statement she sets out the whole of her employment history, starting from September 1988 until November 1998.
2. I should emphasise that the statement, as one would expect, is dealing entirely with the facts which have given rise to the legal proceedings with a summary of the legal proceedings. There is not in the statement any reference to the possible legal questions affecting the case and I would not expect a statement made in these circumstances to do that.
3. With that in mind I have considered all the papers in this case and the lengthy history of the various proceedings. The background to the proceedings is that Mrs Jangra was employed at the time when she was dismissed by a company called Gate Gourmet London Ltd. They were not her original employers. Her original employers were European Air Catering
   Services Ltd, which were later taken over by Gate Gourmet London Ltd.
4. The unfortunate events which led to the proceedings began on 12 May 1996 when Mrs Jangra had an accident at work in which she cut the middle finger of her right hand. There were meetings with management about her future, as she had been away from work following the accident until 16 November 1996. She had then returned to work, but then was away off work from February 1997 onwards. Various meetings took place with management in July and September 1997 and the upshot was that Mrs Jangra was dismissed and her appeal against the decision to dismiss her was also unsuccessful.
5. It was in those circumstances that she started proceedings in the Employment Tribunal. She presented an application to the Tribunal dated 4 December 1997 saying that she had been unlawfully discriminated against on the ground of disability and also had been unfairly dismissed from her position as a Catering Assistant. She said in the details of her complaint that she had been employed as a Catering Assistant and had the accident which I have mentioned on 12 May 1996, which caused her significant pain and she had been medically diagnosed as suffering from Sudecks Dystrophy. This meant that following the accident she had been unable to attend work on a regular basis. I have already mentioned her periods of absence from work. She complains that the decision to dismiss her was taken without giving proper consideration to any reasonable adjustments that could made for her to continue in employment. She was never properly consulted as to what duties she could do and when she could be expected to return to work. Alternatively she claimed that her dismissal was unfair.
6. Those proceedings were successful in the Employment Tribunal following a hearing on 11 and 12 February 1999 at which Mrs Jangra was represented by counsel. The unanimous decision of the Tribunal was that her complaint of discrimination under the Disability Discrimination Act 1995 was well-founded and a complaint of unfair dismissal was well-founded and it was directed that there would be a hearing to consider remedies. The extended reasons for that decision were sent to the parties on 12 March 1999.
7. Unfortunately for Mrs Jangra, there was then an appeal by Gate Gourmet London Ltd to the Employment Appeal Tribunal. The appeal was heard on 12 December 2000 and the judge, His Honour Judge Peter Clark, giving the judgment on behalf of the Appeal Tribunal, allowed the appeal in part and remitted two questions to a fresh Employment Tribunal for rehearing. The first question was:

"given that [the employer] has shown a potentially fair reason for dismissal, capability, but that the dismissal was procedurally unfair in the manner found by this Employment Tribunal at paragraph 35 of the reasons, did the internal appeal cure those defects so as to render the dismissal fair overall?"

8. The second was:

"given that [the company/employer] discriminated against [Mrs Jangra] by reason of her disability by dismissing her, contrary to s.5(1)(a) [of the Disability Discrimination Act], has [Mrs Jangra] shown that their treatment of her, the dismissal, was justified under s.5(1)(b), bearing in mind the matters to which we have earlier referred?"

9. The remitted case was reheard by a new Employment Tribunal at London South on 7 and 8 March 2001. At that hearing Mrs Jangra was represented by a solicitor, Mr R Davies, and evidence was heard. The unanimous decision of the Tribunal in the light of the further consideration of the matter was, first, that the internal appeal cured the procedural unfairness so as to render the dismissal of Mrs Jangra fair overall. The Tribunal also concluded that Gate Gourmet Ltd had not discriminated against Mrs Jangra contrary to section 5(1) of the Disability Discrimination Act. The extended reasons for that decision were sent to the parties on 15 March 2001.
10. It was now the turn of Mrs Jangra to appeal. The appeal was to the Employment Appeal Tribunal and, as I have explained to Mrs Jangra and her interpreter this afternoon, appeals in employment cases are restricted in ways that many other appeals are not. An appeal from the decision of an Employment Tribunal can only be brought on a question of law arising from the decision of or the proceedings in the Employment Tribunal. There is no appeal against findings of fact. So the appeal is confined to debates on points of law and not to the hearing of evidence, either original or new. The hearing of evidence and the finding of facts are functions of the Employment Tribunal, not of the Appeal Tribunal or this court.
11. The matter came before the Employment Appeal Tribunal on 8 October 2001. The decision of the Employment Appeal Tribunal, after hearing submissions from Mr Auburn of counsel under the Employment Law Appeal Advice scheme, was that the appeal against the discrimination point which the Employment Tribunal had decided against Mrs Jangra should proceed to a full hearing. That must have been on the basis that the Tribunal considered that there was a reasonable prospect of the appeal succeeding on a legal point. However, the Tribunal took a different view of the appeal against the finding that there was a fair dismissal.
12. Judge Wakefield gave the judgment on behalf of the Appeal Tribunal. She recorded that it had been argued that the Employment Tribunal was wrong in law or perverse in that, as Mrs Jangra had not attended the internal appeal, it could not be said to have constituted a rehearing of the case so as to be capable of clearing the procedural irregularity in her original dismissal. The Appeal Tribunal did not agree with that submission and pointed out that Mrs Jangra had been given a full opportunity to attend at the internal appeal or make written submissions but did neither. The appeal hearing therefore necessarily consisted of the consideration of medical evidence concerning her condition and the possibility of alternative employment. The Appeal Tribunal ruled that the finding of the Employment Tribunal was unassailable and the appeal on this ground should therefore be dismissed.
13. It is against that ruling at the preliminary hearing of the Appeal Tribunal that Mrs Jangra now wishes to appeal. As already mentioned, I have explained how appeals are restricted to questions of law. I agree with the Appeal Tribunal that no question of law arises on the unfair dismissal point. The new tribunal rehearing the matter on the directions of the Appeal Tribunal in December 2001 had heard fresh evidence and made findings of fact which cannot be disturbed on this appeal, unless it is shown that there was some underlying error of law. In my judgment there was none. The Tribunal were entitled to make the findings of fact that it did and on the basis of those finding to dismiss the application for unfair dismissal. The Appeal Tribunal was therefore right in holding that an appeal on that point stood no real prospects of success though there were legal points on the discrimination appeal which have been allowed to continue.
14. The main point that Mrs Jangra has made to me this afternoon is that she was not given a proper chance at the second hearing in the Employment Tribunal to say all that she wanted to the Employment Tribunal about her case. In my judgment, even if she is of that view, it does not make the decision of the Employment Tribunal one that is erroneous in law. As I have already pointed out, she was represented in the Employment Tribunal, evidence was heard and findings of fact were made. It may be that evidence that she wanted to give was not thought by her advisers or by the Tribunal to be relevant to the limited issues which were remitted to the Employment Tribunal in relation to the internal appeal and whether it was or was not a rehearing which cured the procedural irregularities in the decision to dismiss her. I suspect, from having read Mrs Jangra's very full and helpful statement of facts, that what she wanted to tell the Employment Tribunal was the unfortunate history of her ill-health following the accident of 12 May 1996, which is of limited relevance to the question of unfair dismissal and whether the unfairness was in the procedures that were followed.
15. I know that Mrs Jangra will be disappointed to learn that I conclude that there is no real prospect of this appeal succeeding, but it would not be right for me to allow the appeal to continue when it is most unlikely to succeed and would therefore involve further time and expenditure to no effect. For those reasons I refuse the application.
ORDER: Application refused