United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 382_93_1506

Appeal No. EAT/382/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15th June 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MRS M EXLEY

MRS T MARSLAND

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MISS J A ENGLAND          APPELLANT

NATIONAL WESTMINSTER BANK PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MISS J A ENGLAND

(In Person)


 


MR JUSTICE WOOD (PRESIDENT): Miss England comes before us today asking that a decision of an Industrial Tribunal, which was promulgated on the 22nd October 1987, should be re-opened. Whether it is said to be a re-constitution or an appeal is immaterial, it should I think strictly be an appeal. What happened on that occasion was that an agreement was reached between Miss England and her employers, the National Westminster Bank plc. That settlement and agreement was approved by the Tribunal. It was set out in the schedule to the decision and her Originating Application before the Industrial Tribunal, which had alleged sexual discrimination and sexual harassment, was dismissed.

Miss England has presented her case to us today with clarity, and with moderation; we are grateful to her. There is a long history to this matter. She gave us a number of dates, not always quite in strict chronological order, but I will do my best to set out the history of the matter as we understand it.

Miss England was married, she had a daughter who in 1986 was sixteen (if one adds seven years to that she is now twenty-three). She was working as a part-time secretary with the Bank. Between 1980 and 1982 she alleges that she was the victim of sexual harassment. In 1983 and 1984 the conduct of the Bank was such that she suggests that she could have proceedings for constructive dismissal. In 1985 divorce proceedings were started. In the December of 1985 she consulted solicitors in Epsom with a view to making a claim in damages for negligence and/or constructive dismissal. During 1985 and 1986 Miss England had the assistance of a member of the Bar, Miss Underhill, who was working for the South Islington Law Centre, and also she had the support of her trade union known as BIFU. In December 1985 she received Counsel's opinion, which was not helpful to the claim which she was proposing. She was under considerable stress because in March 1986 the decree nisi was pronounced in her divorce and issues were arising on the question of the custody of her daughter. She suffered what she described as a mini breakdown in January 1986 and her trade union were good enough to help her to see a psychiatrist and to pay his fees. She was the subject of his treatment and was placed on a form of tranquilliser. There was an incident in connection with an electric plug where she was complaining that it needed to be remedied; it was not, subsequently it blew up in some way and another member of the staff was fortunate not to be injured. This brought home to Miss England the fact that the Bank, in her view, were not taking care of her. Matters came to a head, so far as this jurisdiction is concerned, by the issue of the Originating Application which was dated 30th June 1987. To that we have already referred. In the March of 1987, prior to the issue of that Originating Application, Miss England had had a substantial interview with a Deputy General Manager of Personnel Relations and the Manager who was responsible for the grievances and the employment law in personnel relations, and that, a copy of the memorandum is over some 2¹/₂ pages, is before us. It was clear that the problems raised by Miss England, including her domestic circumstances, were carefully examined, her work was examined, her poor attendance record and various other matters. Her grievances and her case was clearly referred to and the matter looked at.

After proceedings were brought Miss England was represented by a member of the Bar, Mr O'Dempsey, who is experienced in these matters. She had also probably just ceased to be advised by another member of the Bar, Miss Underhill. Whoever was advising her she was in the hands of competent lawyers when the agreement was reached. It was placed before the Industrial Tribunal, which sat as a Full Tribunal a Chairman and two Members, including a woman, and there the schedule is set out and her claim was dismissed on terms. She continued to be employed, details were set out of the period she should work, and that her work was going to be under review. There was also a term about the extension of her overdraft. All those matters were carefully looked at and it is abundantly clear that there was a detailed agreement which was placed before the Industrial Tribunal. She entered into the agreement, the proceedings were dismissed by consent.

Unfortunately in October 1988 Miss England suffered a car accident. She was about a week off work and she claimed through the AA Solicitors, Messrs Amery Parkes. Her employment with the Bank ceased on the 31st March 1989 since when she has been doing other things. She has been on courses and doing some part-time work.

The history now proceeds to the question of the car accident. She was made a £2,000 interim payment and she was offered a further £500 in full and final settlement of her claim. This £500 was refused, it remains in issue and at present the case has not been completed. She moved from Amery Parkes to a Mr Liddington, another Solicitor, who discharged himself from her case. She then moved to Messrs Kirkwoods who are now trying to obtain legal aid to complete that matter.

Returning to the history in this jurisdiction, the first document that was written since the October 1987 was a letter of the 5th January 1993. She was seeking, by writing to the Regional Office of Industrial Tribunals, to have the Industrial Tribunal re-constituted. That was refused by a clerk. She wrote again and on the instructions of a learned Chairman, he made it clear, that only a Chairman could make any order and indeed he did not make any order, he said:

"a Chairman who alone is competent to say whether the Tribunal may entertain further proceedings."

It seems to me, looking at the legal position there are only two things that could have happened. Either it was an application for a review of the decision of 19th October 1987, which, not only because of the time but because of the way the matter was dealt with on a consent order dismissing it, seems to have been doomed. Or she could have appealed to this Court against the order. In any event Miss England wrote to this Court on the 22nd April 1993, enclosing a notice of appeal of the 24th April, and those matters are before us today because I directed that the simplest way of dealing with this matter was to look at all the documentation, to hear Miss England present her case, as she has done and to decide two matters. First, whether there should be an extension of time for appealing against the order of October 1987 and secondly, even if we granted that, to consider whether or not there was any error of law in that decision, because as I have already pointed out to Miss England the only jurisdiction in this Appeal Tribunal is a statutory one under the Act and we can only deal with the matter if there is an error of law.

Having thus recited the history as we have understood it, I hope we have got it right because Miss England has been telling us all about it, we then turn to see. It is quite clear that Miss England has been extremely troubled about her litigation over her car accident. It is also clear from the indications that she has given to us that she has been suffering extreme stress and emotional upset and that is fully understandable because she feels that the advice that she has been receiving in connection with that car accident has not been in her best interests and she feels very strongly about that. We can understand that, we can understand that in looking to see whether there was any other way in which she could approach her problems she turned to look once more at what had occurred prior to the issue of the Originating Application in June 1987. Whilst one can sympathise with the situation in which Miss England finds herself, it is our function, as we have already stressed, to look at this from the point of view of the law and not sympathetic counselling, if I may use the opposite expression. We must be legalistic, perhaps, or strictly legal in our approach. We find no error law in this decision at all. It is plain that the parties were advised, they reached agreement, the agreement was incorporated into schedule and by consent the proceedings were dismissed, that is clear we can find no error of law. But in any event, it is far too long, this is years out of time and it almost inevitable, and it is inevitable, that any application to extend time would be dismissed. It follows therefore that this appeal must be dismissed.