United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


HIS HONOUR JUDGE D M LEVY QC This is a preliminary hearing of a proposed appeal by Miss P J Smith, the Appellant, against the Optimum Health Services NHS Trust.

The origins of the appeal go back quite a long way. In 1995, the Appellant was employed within the first health promotion of the Respondent as a team leader. She had 6 working staff in the NHS liaison team and was responsible for day to day management and professional personnel department of those staff. She was away sick from 4 May 1995 and, whilst she was away, a number of her team complained about her conduct. In her absence, there were investigations; when she returned from sick leave (she returned a little unexpectedly), she was suspended and in due course there was an investigation followed by a disciplinary hearing based on the complaints of her subordinates.

Soon after the disciplinary hearing had started, the Appellant issued the first of two Applications to an Employment Tribunal. The two were eventually consolidated. There was a very long hearing before an Employment Tribunal which sat at London (South). Evidence was heard for 17, 11 of them in May 1997, 1 of them in December 1997 and 6 of them in June 1998. There were then 2 days during which the Members consulted, following which a reserved decision was sent to the parties on 18 August 1998. The unanimous decision of the Tribunal was that the claims of race discrimination and victimisation presented by the Appellant were dismissed as was the claim for unfair dismissal. The Extended Reasons are exceptionally long and on the surface, balanced. There was the shortest Notice of Appeal from that judgment dated 23 September 1998. In full it reads:

"The decisions made were against the weight of evidence in relation to Race Discrimination, victimisation and unfair dismissal and against the laws of natural justice."

There is very little from that sparse Notice of Appeal for this Tribunal to know of what the Appellant complains. It was filled out a little in the form she was required to complete for the preliminary ex-parte hearing; it was filled out further by a document dated 15 March (i.e. one week ago) which she sets out in a little more detail, but with no particulars whatsoever of the matters which she complains.

Miss Smith has appeared before us today. She says that she is a litigant in person who knows little or nothing on what she has to do when a matter comes up to appeal. We have drawn her attention to the practice direction of this Tribunal on procedure and particularly to the paragraph headed "9. Complaints about the conduct of the hearing by the Industrial Tribunal". We have drawn her attention to the passage which says "What is and is not acceptable in a Notice of Appeal".

Having all spent a great deal of time carefully considering the content of the decision of the Employment Tribunal, we feel that she may have an uphill struggle on any appeal, but where a litigant in person wishes to make a complaint of bias against a Tribunal, we think that when she is in person she should have the opportunity to formulate a complaint. She has in a sense had an opportunity, but when the Notice of Appeal came in, it has not been taken.

Miss Smith has had the benefit today of some assistance from Miss Raman on the Employment Law Association Appeals Scheme. In the particular circumstances of this case, we think that the appropriate course to take is to permit Miss Smith to have a further preliminary hearing of her appeal, but as a preliminary to that she must put in an amended Notice of Appeal which complies with the rules and she must send to the Tribunal an affidavit in support of the complaints which she wishes to make. Once that has been obtained, the Registrar may well wish to get the comments of a Chairman of the Employment Tribunal on what is said. If an amended Notice of Appeal is received within 21 days from today and an affidavit from Miss Smith setting out the grounds on which she relies, then the matter will be restored for a further hearing. It does not follow that leave to amend the Notice of Appeal will be given because that is a matter on which the views of the Respondent may in due course have to be heard.

If however no Notice of Appeal or affidavit is received within the 21 days, then the appeal will be struck out. That is because on the material before us at the moment, there are no grounds on which it can possibly succeed. The Notice of Appeal is so inadequate and does not give the details required by the rules and therefore on those grounds alone, the appeal must fail.

We should add that in the course of her spirited address to us, Miss Smith has suggested that some of the interlocutory steps which were taken before this matter came to the hearing were also in breach of natural justice. Without expressing any final views on this, it is to be noted that there was an interlocutory judgment of the Employment Tribunal which was sent to the parties as long ago as 18 June 1997, and a review on 29 September 1997. No appeal was made against these decisions in the time limits provided by the parties.

There is also some complaint made as to the decisions made by the Employment Tribunal as to witnesses attending at the hearing between the December 1997 and 1998 hearings. It may well be that if appeals are to be made against the decisions reached, they should have been made well before now and they therefore may be out of time. These are matters which will have to be considered by Miss Smith and any others who advise her when the amended Notice of Appeal is formulated.

In the circumstances therefore, we will allow this matter to come forward in the way we specified, but if the affidavit and the amended Notice of Appeal are not received in time the appeal will be dismissed.