United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondents	MR DAVID WIDDENSEN (Solicitor) Instructed by: Mr P J Hoskins Messrs Bevans Ashford Solicitors 35 Colston Avenue Bristol BS1 4TT


 


MR JUSTICE MORISON (PRESIDENT): This is an interlocutory appeal. It is urgent, because the substantive hearing of Ms Sam's complaint against her former employers is due on 7th April 1999 to last for three days.

There are two issues raised by the appellant. The first is in relation to discovery; and the second is in relation to the Employment Tribunal's decision that she should not be permitted to amend her complaint at this stage to add a complaint of discrimination on grounds of race.

This morning the Employment Appeal Tribunal drew to the court's attention a letter which was faxed here on Saturday, annexed to it was a medical certificate. It appears that the appellant is suffering from laryngitis and stress, having been engaged, apparently, in a matter of no direct concern to the Employment Appeal Tribunal, but where she is legally represented.

Having regard to the urgency of the appeal and the need for the Employment Tribunal hearing date to be maintained having regard to the extensive adjournments which have been required in the past, we are willing to consider the two grounds of appeal in Ms Sam's absence, taking into account of course, such written material as we have available to us.

In relation to discovery, essentially, she is complaining that her former employers have not used their best endeavours to discover material which was ordered to be disclosed by the Employment Tribunal. In relation to certain items the Hospital are saying that either the document never existed or is not now any longer available to be disclosed. It would be unfortunate if this hearing were to start with Ms Sam under the impression that one way or another her former employers had been tricky about the issue of discovery. We have invited their solicitor who has appeared today, to whom we are grateful, to consider the question as to whether an affidavit might be served, setting out the steps that have been taken to ascertain the whereabouts of any document that they have been unable to produce; and to give the sort of information that would be provided by a respondent to an application for specific discovery made in the High Court. If they are able to provide that affidavit we would consider that that would facilitate the hearing of the case on 7th April, because it should put an end to the suspicions and fears which Ms Sam has on the discovery question. We understand from Mr Widdensen that the respondents, in principle, would not be opposed to providing an affidavit. We make no order in relation to that, because we think that it can be sensibly left to the respondents to comply with our request that such an affidavit should be produced and preferably served on the appellant before the end of this week.

In relation to the application for leave to amend and the appeal against the tribunal's decision. It seems to us that that is an appeal which has no merit whatever. The Employment Tribunal's judgment that it was too late to make such an application, was the exercise of a discretion by them. Where a tribunal has exercised a discretion we can only interfere if we are satisfied that the discretion has been improperly exercised. That is not our view. Indeed, we are of the view that the decision of the Employment Tribunal on that issue cannot be faulted. Accordingly, that part of the appeal will be dismissed.

On that basis therefore we dismiss the appeal.

We were invited to deal with the question of costs, but did not consider that it was an appropriate case for making an order, partly because Ms Sam is not present, and partly because, it seems to us, that the merits of the case should be heard and determined as soon as possible, and any question of costs can then be dealt with at the Employment Tribunal, if it were to appear that Ms Sam has acted unreasonably in the making of her complaint of unfair dismissal.