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

		Royal Courts of Justice Strand London WC2 Friday 23rd March, 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Miss Lovejanet Lagotse in person. In support of her application she submitted a skeleton argument. A supplemental skeleton argument dated 21st March has been prepared, with the assistance of the Royal Courts of Justice Citizens Advice Bureau, setting out additional arguments as to why permission to appeal should be granted.
2. The order which Miss Lagotse wishes to appeal is that made by the Employment Appeal Tribunal at a preliminary hearing on 13th December 2000. The judgment of the Employment Appeal Tribunal was that the appeal which Miss Lagotse wished to bring did not raise any arguable point of law and should therefore be dismissed. The judgment of the Employment Appeal Tribunal, which was sent to the parties on 8th February 2001, was given by the President, Lindsay J. In his judgment he set out the basis of Miss Lagotse's claims and the history of the proceedings.
3. The history of the matter can be quite shortly summarised. Miss Lagotse was employed by the respondent London Borough of Camden Education Department. Her job was that of a nursery nurse. She was employed from the beginning of October 1979 until 30th July 1998, when she was retired on health grounds having been on sick leave from early November 1997.
4. The circumstances in which Miss Lagotse's employment terminated led her to present to the Employment Tribunal on 28th October 1998 a complaint that she had been unfairly treated and unfairly dismissed, and that the council had ignored her call for help with the risk posed to the safety and security of her life and of the children in her care.
5. The details of her complaint are set out in her own writing in box 10 of the IT1 form. She said this:

"I have work for London Borough of Camden since 1st October 1979. I was employed as Nursery Nurse now based at Fitzrovia Children Centre at the time of my dismissal. On the 7th Nov 1997 3 days back after I had a heart attack at work, I was made ill again at work, having consulted my doctor for advice and treatment, I have since been off sick, suffering from stress and depression, painful ankle and neck. My employers terminated my employment on ground of ill health as from 30th July 1998. I had appealed against my employer's decision but was unsuccessful. Further grounds of dismissal to follow."

6. The Employment Tribunal made an order on 1st February 1999 requiring Miss Lagotse to send to the council and to the Tribunal Office further particulars of her claim. She failed to do that within the time stated.
7. On 26th February 1999 Miss Lagotse was warned by the Tribunal that, unless written reasons were given within 14 days as to why an order should not be made, a chairman would consider striking out her application for not complying with the order for particulars. The particulars were not supplied, and so on 19th March 1999 an order was made striking out the originating application. The decision was sent to the parties on 23rd March 1999. That is two years ago to the day.
8. Nothing then happened until 23rd July 1999, when a firm of solicitors acting for Miss Lagotse, Messrs Dozie & Co, wrote requesting reinstatement of Miss Lagotse's application. That application for reinstatement was heard by the Employment Tribunal sitting at London North on 14th June 2000.
9. Miss Lagotse did not attend the hearing. This was noted by the Tribunal in paragraph 6 of its reasons promulgated on 29th June 2000. Miss Lagotse has informed me that the reason why she was not able to attend was that, following an unpleasant burglary at her house in March 2000, she suffered severe headaches, which were suspected to be caused by a brain haemorrhage. She had had to go into hospital in intensive care and remained in hospital for the period 13th May to 23rd June 2000.
10. That, of course, was a very unfortunate onset of ill health at an important time in these proceedings. However, it appears from the Tribunal's reasons that Miss Lagotse was represented at the hearing on 14th June by Ms Walters from a firm called Messrs Tayo Arowojolu. Ms Walters submitted on behalf of Miss Lagotse that the striking out order was unjust and unfair. It was pointed out that Miss Lagotse had been a long-serving employee of the council, she had been unwell and subjected to physical fear and violence and a domestic break-in, and had not understood the importance of complying with the order for particulars. So she contended that the striking out order should be rescinded and Miss Lagotse should be allowed to proceed with her claim.
11. The Tribunal also heard submissions by a solicitor, Ms Landy, on behalf of the council. They are summarised in paragraphs 7, 8 and 9 of the Tribunal's reasons.
12. The Tribunal concluded that Miss Lagotse must have known exactly what was required of her by way of further particulars but nevertheless had not complied with the order, and stated that nothing they had heard in the hearing on 14th June had demonstrated any grounds for setting aside the order of 19th March. The Tribunal said in paragraph 11:

"Tribunals always `lean over backwards' to make sure that unrepresented parties have everything explained in detail. In this case we are satisfied that the Applicant knew what was being requested of her and simply failed to respond despite the warning letter and despite the notice sent with the original Order."

13. The Tribunal found that there were no grounds for a review and no grounds for holding that the interests of justice required the setting aside of the order. The result was that the order of 19th March remained in force and the claim remained struck out.
14. There was then an appeal against that decision to the Employment Appeal Tribunal. As I have already indicated, that was dismissed at a preliminary hearing held on 13th December 2000 to decide whether Miss Lagotse's appeal raised a novel point of law. As I have explained to Miss Lagotse at the outset of this hearing, appeals against the decision of an Employment Tribunal - whether to the Employment Appeal Tribunal or to this court - can only be on a point of law. If the appeal is against the exercise of a discretion, such as a discretion to strike out a claim for want of compliance with an order of the Employment Tribunal, it has to be shown that the Employment Tribunal made an order that was plainly wrong or was made in disregard of legal principle or relevant factors.
15. At the preliminary hearing Miss Lagotse was represented by counsel, Ms Burnham, appearing under the Employment Law Appeal Advice Scheme. She made a number of helpful submissions to the Employment Appeal Tribunal. The Employment Appeal Tribunal said this, at paragraph 18 of Lindsay J's judgment:

"We have heard, as we have indicated, Ms Burnham at length. She has put her case with great force. But we are unable to see this as a case of perversity or of any form of injustice and, doing the best we can, we see no arguable point of law, and it has to be emphasised that it is only points of law that we are dealing with at this stage and only arguable ones at that, that can be found in Ms Lagotse's favour."

16. The Employment Appeal Tribunal concluded that the Employment Tribunal was entitled to find that no case had been made out for setting aside the striking out order and there were no arguable points of law in the Employment Tribunal's extended reasons. So the appeal was dismissed.
17. Miss Lagotse wishes to appeal against that decision. She lodged an application with the Civil Appeals Office on 20th December 2000 seeking permission to appeal. She says, as was contended by Ms Burnham on her behalf in the Employment Appeal Tribunal, that the striking out order made by the Employment Tribunal was unfair and unjust and the Employment Appeal Tribunal was wrong not to set it aside. She says she has a claim for unfair dismissal and discrimination, including harassment, and to have struck out that claim without hearing it and without her being present was in breach of Article 6 of the Human Rights Convention. She had been denied a fair trial. She had not been able to provide the particulars because she had been seriously ill in hospital, and she was not in wilful breach of the order made by the Employment Tribunal.
18. As already mentioned, Miss Lagotse has received some help on the preparation of this application from the Citizens Advice Bureau. The main points in the skeleton arguments which have been submitted, in addition to those which I have already quoted from the Notice of Appeal, are these.
19. The decision of the Employment Tribunal refusing to reopen the case was perverse. It was submitted in the supplemental skeleton argument that, in the light of the findings of fact and law, the Employment Appeal Tribunal had erred in confining itself exclusively to the question of perversity of the Employment Tribunal's decision to request the reopening of the case. It is contended that it would have been more appropriate and consistent with the facts, with Miss Lagotse's known intentions and with the principles of natural justice for the Employment Appeal Tribunal to have considered her appeal to be in part or in whole an appeal against the original decision of the Employment Tribunal to strike out her case, and not simply an appeal against the refusal to grant a review. It was submitted that, had the Employment Appeal Tribunal adopted that approach, it would have found on the facts that, notwithstanding her appeal was brought out of time, the time for appealing should have been extended and the appeal should have been allowed. It was emphasised that there was no dispute that throughout the course of the matter Miss Lagotse was seriously ill, which hampered attempts to progress her case, that she had instructed solicitors at various times, thus demonstrating her wish to progress her case, notwithstanding her poor health, and that a large proportion of the delay and mistakes in the conduct of her case were attributable to her solicitors and legal advisers, for which she should not be penalised. It was emphasised that the documents confirmed that she had a substantive complaint of discrimination and unfair treatment, and that in all the circumstances it was wrong of the Employment Tribunal to strike it out and wrong for the Employment Appeal Tribunal on appeal not to have set aside that decision.
20. I have considered all those arguments and I have also taken note of the points made by Miss Lagotse this morning. She has explained how she has been on anti-depressant tablets. She explained the serious effect on her health caused by the burglary in March 2000 and her serious illness in hospital in May and June. She also alleged that Ms Walters, who was her solicitor at the time of the hearing in the Employment Tribunal, had told her that the hearing was on 14th July, when in fact it had taken place on 14th June. Finally, she said that the council have a file of her papers which she wishes to have returned to her and which have not been returned.
21. After taking all those points into account, Miss Lagotse will be disappointed to learn that I have come to the conclusion that this appeal does not have a real prospect of success. The reasons for my conclusion are these. The Employment Tribunal had power to make the order for the supply of further particulars. Miss Lagotse was notified of the order and warned of the consequences of not complying with it. She did not comply with it. The provision of the particulars was important. This was recognised by Miss Lagotse herself when, in the part of box 10 of the IT1, she said "further grounds of dismissal to follow". The particulars were required in order to make clear to the council and to the Employment Tribunal the basis on which Miss Lagotse was pursuing this case.
22. As the order was not complied with, the Employment Tribunal had a discretion to strike out the claim. This court, and the Employment Appeal Tribunal as well, will not interfere with the exercise of a discretion unless there is an error of law in it. There is only an error of law in the exercise of a discretion if the decision made in the exercise of the discretion is plainly wrong, or is contrary to legal principle and in disregard of relevant facts. That cannot be said in this case. The Employment Tribunal made an order it was entitled to make in law and there is no real prospect of this appeal resulting in a successful outcome for Miss Lagotse.
23. I am sorry that Miss Lagotse will feel disappointed, having pursued this matter as far as she has. But I have to apply the law as it is. The result is that this application is refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________