England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE COLLINS)

		Royal Courts of Justice Strand London WC2 Tuesday, 15th May 2001

Tuesday, 15th May 2001

JUDGMENT
1. LORD JUSTICE MUMMERY: This is an application for permission to appeal made by Miss Rita Singh in person. She has received assistance in the preparation of her bundle of documents in the appeal from the Royal Courts of Justice, Citizens Advice Bureau. She also received some assistance in the Employment Appeal Tribunal, against whose order of 19th January 2001 she wishes to appeal, from Miss Hill of counsel appearing under the Employment Law Appeal Advice Scheme.
2. Her appeal was dismissed. That appeal was against the unanimous decision of the Employment Tribunal at a hearing on 7th April 2000. On 13th April 2000 extended the reasons for the tribunal's decision rejecting Miss Singh's complaints of constructive unfair dismissal was sent to her.
3. I have explained to Miss Singh that an appeal from the Employment Appeal Tribunal to this Court can only be brought with permission. In order to obtain permission it is necessary for her to show that her appeal has a real prospect of succeeding and that an appeal from the Appeal Tribunal to this Court can only be brought on a point of law. There is no appeal against findings of fact. In the case of a discretion, such was exercised by the Employment Tribunal in this case, it would be necessary for Mrs Singh to show at the appeal that the exercise of discretion was plainly wrong or had been made in disregard of legal principle or on a serious misunderstanding of the facts.
4. The background to Miss Singh's appeal is that from July 1992 until October 1997, when she was dismissed, she was employed as a health visitor by the respondent, Lambeth Healthcare NHS Trust. From about January 1997 she had been absent from work through illness. When she was dismissed, she started proceedings in the Employment Tribunal. The application was lodged at the end of October 1997. Her complaint was of unfair constructive dismissal, breach of contract and unlawful deduction from wages. She filled in the details herself in her own handwriting. These have now been typed out and from box 11, the typed version, the details of her complaints are these:

"I have been forced out of my job as a Health Visitor following a sickness absence of 9 - 10/12 months, a viral infection.... I have now fully recovered and been given a starting date on 3 November 1997. Some negotiations via letter and meetings have ensued during my illness. On my last interview on occupation health, it was agreed that I could return to health visiting immediately, and that no major decision otherwise would be taken without a Disability Employment Adviser's intervention, in order to utilise my Health Visiting Skills. This was on 22 October am, BUT when I arrived at the meeting, pm, a fax had arrived from Occupational Health Department that I can no longer work as a health Visitor but have to be re-deployed permanently to a sedentary position (which will be detrimental to my upper arm condition). This decision is medically unjustifiable and I was shocked and explained to management that I will be challenging this unfair decision. My previous sickness absence is not due to a chronic medical condition - quite a lot was due to harassment. Despite several requests no written explanation."

5. That complaint was resisted by the NHS Trust on the grounds set out in their grounds of assistance which were lodged with the Employment Tribunal.
6. The matter came on for hearing before the Employment Tribunal. Thereafter it has had a long history. The case was first considered by the Employment Tribunal sitting at London South on 30th March 1998. That tribunal, in reasons provided on 15th April 1998, held that Miss Singh had not been dismissed, but in any event, if she had been dismissed, the dismissal had been fair in that the NHS Trust had been patient with her over many months and their actions leading to her dismissal could not be faulted.
7. Miss Singh appealed against that to the Employment Appeal Tribunal. The outcome of the appeal was that the matter was remitted for rehearing. The rehearing before the Employment Tribunal is the one which has led indirectly to this application for permission to appeal. The case was listed for hearing in the Employment Tribunal on 7th April 2000. Miss Singh did not attend the hearing. The Employment Tribunal unanimously decided to deal with the case in her absence. They decided that in the absence of any evidence to support her complaint of constructive unfair dismissal that complaint should be dismissed.
8. The extended reasons sent to the parties on 13th April 2000 explained the history of the matter since the Appeal Tribunal judgment remitting the matter to them. The Tribunal then said in paragraph 6 of the extended reasons:

"At the hearing on 7 April 2000 the Tribunal members were satisfied that the Applicant was well aware of the necessity for the case to proceed prior to Ms McLoughlin leaving the country in mid April 2000 and the reason why the case had been brought forward to 7 April [Miss McLoughlin was to be a witness in the case]. The Tribunal noted that the Applicant had sent in a medical certificate and that that medical certificate expired on the date of the Tribunal hearing and no further medical certificate had been received. The Tribunal members read the whole of the Applicant's letter of 30 March 2000. The Tribunal members noted the reasons why the postponement request of 20 March had been refused and noted why the renewed postponement request had been refused. The Tribunal was of the view that whatever decision it took there would be a prejudice to one party or the other and the Tribunal balanced that prejudice. The Tribunal concluded that the prejudice to the Respondent in delaying the hearing outweighed the prejudice to the Applicant. In those circumstances the Tribunal decided to proceed to dispose of the case in the absence of the Applicant in accordance with Rule 9(3) of the Employment Tribunals Rules of Procedure 1993."

9. Having announced that decision, counsel for the NHS Trust applied for the case to be dismissed in the absence of evidence to support the constructive dismissal claim. The tribunal considered it; took into account the originating application and the notice of appearance and the referral back to the Employment Tribunal by the Employment Appeal Tribunal. The tribunal continued that they had not received any evidence in support of the complaint due to the absence of the applicant. The burden of proof was with her and in the absence of any evidence at the hearing, the tribunal considered that the burden of proof had not been satisfied. The complaint was accordingly dismissed.
10. Miss Singh applied to the Employment Tribunal for a review of that decision. The review application was refused for reasons notified on 2nd May 2000. The application was refused for the reason that it had no reasonable prospect of success. The tribunal referred to its extended reasons of 13th April 2000 and to the subsequent letter it had received from the Royal Courts of Justice, Citizens Advice Bureau, making application for a review on behalf of Miss Singh. The letter stated that the reason for the application was that the decision had been made in her absence. It was pointed out that her case had been referred to the bar pro bono unit, which had instructed counsel to advise her, but counsel was not available for the hearing of 7th April.
11. The tribunal then referred to various other matters, saying that no message had been received by the tribunal on 7th April giving any reason for non-attendance. The letter from the Royal Courts of Justice Advice Bureau did not give any reason for her non-attendance on 7th April. The tribunal added that a party cannot stay away from a hearing and expect to force a postponement when an application for a postponement has been made and refused. In this case no reason had been put forward by the applicant for a non-attendance either on the day of the hearing or in the letter of application for a review. The tribunal therefore refused the review.
12. Miss Singh then appealed to the Employment Appeal Tribunal. Her appeal was dealt at a preliminary hearing on 19th January. His Honour Judge Collins gave judgment on behalf of the tribunal concluding that it was a hopeless appeal which should be dismissed, and refusing permission to appeal. The judgment of His Honour Judge Collins referred in detail to the history of the proceedings and the circumstances in which Miss Singh's complaint came to be dismissed by a tribunal in her absence. Having reviewed the material, the tribunal pointed out that there was simply no medical evidence before the Employment Tribunal either on 7th April or when it considered the application for review, nor was there any medical evidence before the Appeal Tribunal to justify the proposition that Miss Singh was unable to get along to the Employment Tribunal and state her case. In paragraph 17 of his judgment, Judge Collins said this:

"In the absence of such evidence it seems to us that this appeal cannot begin to get off the ground. The tribunal considered the whole history. They had a discretion to exercise as to whether to adjourn the case or not. They had regard to all the material that is before them, when they considered the exercise of discretion, and no fresh material could not reasonably have been placed before the tribunal had been placed before us to suggest that the exercise of the discretion was wrong."

13. The application for permission today is therefore one that is against the exercise of the discretion of the Employment Tribunal to decide to dispose of the case in Miss Singh's absence. As I have already indicated, it would be necessary for Miss Singh to show this Court, if there was a full appeal, that the exercise of the discretion to decide the case in her absence was plainly wrong or in disregard of legal principle. There was no doubt that the tribunal had the power under the rules to do what they did. The question is whether they exercised that power properly in all the circumstances.
14. In support of the application Miss Singh has referred to a number of documents which have been added into the bundle and relate to her medical condition, to her individual performance plan, and to the provision of open and closed sick days. She has pointed out the material about her sickness and ill health, which put her at a disadvantage. She says it made it difficult for her to think, although she is a bit better now. Her GP would not have allowed her to go back to work in the condition in which she was. She also derived some assistance from the skeleton argument in the bundle which had been prepared on her behalf by Mr Kibling of counsel in relation to the hearing in the Employment Tribunal, and has shown me those points which he made in the skeleton argument about her claim.
15. In her notice of appeal Miss Singh has set out a number of grounds on which she wishes to pursue her appeal. She has said that the Employment Tribunal had contravened her Human Rights and relies on article 6; they failed to telephone her to tell her that the case was still on; her GP had confirmed that she had received no challenge to the open medical certificates that she issued at the time of her illness; she repeats that she was sick with depression at a time and on an open sick note which ended on 6th April and was reviewed from 7th April as an open sick note. She submits that the medical certificates and other medical documents raise an important point of principle and wishes to pursue that on the appeal. She criticises the judgment of Judge Collins for refusing at the preliminary hearing of her appeal to allow the matter to go forward to a full appeal. What she wishes to have is a fresh hearing at which she will be represented and be able to advance arguments in support of her claim for constructive unfair dismissal.
16. I have taken all these points into account, along with the other material which is contained in the bundle. My conclusion is that this appeal does not have a real prospect of success for the simple reason that Miss Singh is not able to point to any error of law in the way in which the Employment Tribunal dealt with her case. The Employment Tribunal had the power under rule 9(3) of the Employment Tribunals Regulations 1993 to proceed to dispose of the case in the absence of a party. They did that and they considered the originating application and notice of appearance and other representations in documents. For the reasons set out in their decision they were entitled to take that course. I am of course aware that deciding a case in a person's absence can be a matter of grievance. I have to decide, however, whether the Employment Tribunal had failed to exercise their discretion properly in taking that course.
17. In my judgment they have not. Having regard to the absence of the medical certificate for a day after the hearing, the tribunal were entitled to conclude that this was not a case for a further postponement of the hearing and they were entitled to proceed to deal with the case of the materials they had and without any further evidence or representations from Miss Singh. It follows in my view that the Appeal Tribunal were correct in their conclusion that Miss Singh's appeal does not raise any point of law. For that reason I refuse this application.
(Application for permission to appeal refused)