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 AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Charles)

		Royal Courts of Justice Strand London WC2 Tuesday, 22nd May 2001

Tuesday, 22nd May 2001

1. LORD JUSTICE BUXTON: This an application by the appellant, Ms McDade, for permission to appeal against a judgment of the Employment Appeal Tribunal delivered on 29th January 2001. In that decision the EAT upheld a previous decision of an Employment Tribunal that the applicant's claims for wrongful and unfair dismissal were barred by reason of time.
2. I can very briefly state the background facts. The applicant was employed by a firm of solicitors, Messrs S J Berwin, from October 1995 in a capacity which, as she says, is in some dispute, but she was either, or both, a paralegal and a legal secretary. In October 1998 she sent an internal e-mail, making comments about a partner in the firm, to which objection was taken. As a result of disciplinary action, she was asked to leave on 17th November 1998. She was not paid by the firm after that date.
3. An internal appeal was provided for in her contract, which was heard on 17th December 1998. She was unsuccessful in that appeal, and she was notified of the result on 29th December. Her claim, addressed to the "Employment Appeal Tribunal", was dated 17th February 1999 and was received by the Tribunal on that date. The Tribunal held that the effective date of termination had been 17th November 1998, and therefore, if the claim was to comply with the three month time limit provided for such claims, it should have been made on or before 16th February 1999, that is to say it was one day out of time on that assessment. The Employment Tribunal held that it had been reasonably practical for the applicant to submit her claim in time, and therefore that it had no jurisdiction to hear the claim.
4. It was against that decision that the applicant appealed to the Employment Appeal Tribunal. I shall come in a minute to the grounds of appeal that the applicant now puts forward; but before that tribunal the principal matter in contention, which was a matter of law and construction, was what had been the effective date of termination of the appellant's employment. The EAT held, as had the Employment Tribunal, that that had been on 17th November 1998. The appellant's contention was that that was not correct because the intervention of the appeal process within her employment relation meant that she was not effectively dismissed until the termination of that process, which was, as I have said, some time in December. The Employment Appeal Tribunal held that that analysis of the contractual situation was incorrect. In my judgement they were entirely right so to conclude.
5. What happened in Miss McDade's case was that she was summarily dismissed on 17th November. As is well established, provided a summary dismissal is genuine and not artificially created (and there is no suggestion of that in this case), such a summary dismissal and its effectiveness as a dismissal is not affected by the internal appeals procedure unless the contract expressly provides for the continuation of the employment pending such an appeal. The appellant's contract did not so provide. That was the only question effectively for the Tribunal, and in my judgement the Tribunal determined it correctly. It was not correct to say that there had been anything in the nature of a repudiatory breach on the part of the employers which awaited an acceptance by Ms McDade. The employer straightforwardly dismissed her, for reasons right or wrong, on 17th November, and the subsequent events did not affect that. In my judgement, that is the end of this matter.
6. Ms McDade makes various complaints before this court. The first is that the hearing that she had before the Employment Appeal Tribunal was ex parte and not inter partes. She says that is in breach of her right to a public hearing under Article 6 of the European Convention on Human Rights. That is not correct. Article 6 gives no right to an inter partes hearing as opposed to a hearing, which Miss McDade manifestly did receive. It appears from what she has written and from what she has said to me this morning, at some length, that the discomfort that she feels in having the hearing ex parte is that in a previous dispute that she was engaged in with another firm of solicitors, where she was also unsuccessful, a hearing in that case took place ex parte which she seems to believe was in some way improperly influenced----
7. THE APPLICANT: The citation disappeared. Point of law.
8. LORD JUSTICE BUXTON: Please do not interrupt. ----that she seems to think was in some way improperly influenced by persons outside the ambit of the Tribunal. I have not entered into that. It has nothing to do with this case.
9. THE APPLICANT: It is criminal. You can refer it to the Criminal Division.
10. LORD JUSTICE BUXTON: Please do not interrupt. It has nothing to do with this case, and it is not a ground for criticising what happened in this case.
11. THE APPLICANT: Yes it is.
12. LORD JUSTICE BUXTON: Furthermore----
13. THE APPLICANT: If you can be rude, I can be rude. I can see where this is going. You are covering up for Richard Susskind. You are despicable.
14. LORD JUSTICE BUXTON: I think it would be better if you withdrew, yes.
15. THE APPLICANT: You have no idea of human rights. You have no idea of people's suffering. I have been through absolute hell because of that man. You are absolutely despicable, absolutely unbelievable. You should be shot.
16. LORD JUSTICE BUXTON: I pause in delivering judgment as Miss McDade at this stage wished to leave the court. I make no comment on the observations that she sought fit to direct to the court.
17. As I have already said, Miss McDade's first ground of appeal was an objection to the ex parte nature of the hearing. The second was that the contract of employment did not come to an end until the conclusion of the appeal process in December 1998. I have already indicated that she was wrong on that point and that the Tribunal was right. Her third ground, which is difficult to understand, is that a proper transcript of the hearing below was required, or a proper transcript of some of the hearing was required, for the consideration of this application. In fact we have an extremely accurate transcript of the judge's determination. Miss McDade appears to be under the impression that she has a right to have every word that she speaks to the court transcribed at public expense. That is not the case. From what she has said this morning it appears that her complaint about the transcript is not in relation to this application, but in relation to the earlier case against another firm of solicitors with which we are not concerned. Finally, she complains in her grounds of appeal that her contact of employment provided for a three-month notice period which she was not granted. That, of course, did not arise because, as I have already indicated, she was summarily dismissed with the legal consequences that follow from that.
18. This application is misconceived and is not granted.
Order: Application dismissed.