United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P ALLEN (Solicitors) Beachcroft Wansbroughs 100 Fetter Lane London EC4A 1BN


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us as a preliminary hearing the appeal of West Middlesex Hospitals NHS Trust in the matter Mrs A E Basley against West Middlesex Hospitals NHS Trust.

1. The matter has a very curious procedural history. On 10 June 1998 Mrs Basley lodged an IT1 claiming "bullying, lack of trust, loss of confidence, false accusation – theft, discrimination due to disability and submitting a false statement (sick leave)". That IT1 described her employment with the Trust as having been from August 1993 to April 1998.
2. On 6 July 1998 the Trust lodged its IT3 and it dealt under four headings with the complaint that Mrs Basley made and the Trust said, inter alia:

"Mrs Basley resigned from her position on 18.03.98 giving one month's notice. However Mrs Basley requested to leave the Trust early and not to work her complete notice period. This was discussed with Mr Brothwood – Patient Services Co-ordinator (in Mrs Maher's absence), and a date was agreed. There were a number of misunderstandings between Mrs Basley and her colleagues during her notice period which have since been clarified."

3. There was some talk about the giving or withholding of a reference to Mrs Basley and that was dealt with in the IT3. What the Trust said was:

"A reference was requested by Ms Kosar c/o London Borough of Hounslow, for which a response was made by post on 15.04.98. The response was not received by Ms Kosar, therefore following a second request on the 22.04.98, the reference was faxed the same day. A transcription error was made on sickness absence for 1997/98, indicating 39 days instead of 29 days. On discovery of the error Mrs Maher wrote to Ms Kosar (letter dated 11.06.98) to try to address the error. Mrs Basley was also informed and an apology was made in writing."

4. On 25 August 1998 there was a hearing before the Tribunal before a three-person panel and it seems that at the end of the hearing there was an oral announcement of the result, namely that Mrs Basley's IT1 was dismissed. The Decision should then have been recorded in a document signed by the Chairman: see Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, Rule 10(2). Summary or Extended Reasons should have been given: see Rule 10(3) and 10(4). There is no indication that either side asked for Extended Reasons either at or after the hearing. Had Mrs Basley wished to appeal she would have needed to have asked for Extended Reasons but no such request appears to have been made.
5. Whether the Chairman did sign a document within the meaning of Rule 10(2) is unknown, as also is unknown whether anything was at the time entered in the Register under Rule 10(5). Certainly nothing was sent to the parties under Rule 10(5) at this early stage.
6. Then, on 10 February 1999, two documents were sent to the parties. First of all Extended Reasons for the decision given orally on 25 August 1998, some 23 weeks before, bearing a stamp "Decision entered in Register … 10.2.99". Secondly, a document headed "Interlocutory Order" also said to have been entered in the Register on 10.2.99, indicating that it was proposed to review the decision of 25 August 1998 and giving the parties notice to show cause why there should be no review. The document fixed 22 February 1999 for the hearing of that question.
7. There was in fact a hearing but on 28 May 1999 before the same panel of three as had heard the matter in August 1998 and the decision at the second hearing was:

"The unanimous decision of the Tribunal is that:-

(i) the decision of the Tribunal promulgated on the 10 February 1999 is hereby reviewed and it is directed that there should be a further hearing, with an estimate of two days, on a date to be notified, to hear and determine the issues set out below;

(ii) the issues to be determined are whether the Respondent unlawfully discriminated against the Applicant as a disabled person, by

(a) dismissing her, and/or

(b) subjecting her to a detriment by the provision of a reference which was inaccurate and/or delayed."

And Extended Reasons were given.

Rule 11(7) provides:

"(7) On reviewing its decision a tribunal may confirm the decision, or vary or revoke the decision under the chairman's hand; and if it revokes the decision, the tribunal shall order a re-hearing before either the same or a differently constituted tribunal."

8. Here, the Tribunal does not, in terms, revoke the earlier decision and its paragraph 13, which says:

"13. … However, it is for the Tribunal which hears the case to determine how much our findings of fact are to be accepted, varied or supplemented, bearing in mind the limited ambit of the evidence we considered."

suggests that there has been no revocation because how else could there be any existing findings of fact? Whether or not a review can order a re-hearing without revoking the earlier decision is an arguable point. Nor, it is to be noted, does the review indicate which, if any, of the grounds described in Rule 11 (1) was here satisfied. At all events the review said, in relation to a proposed re-hearing, as follows, in their paragraph 11:

"11. We determine the relevant issues for consideration to be as follows:

(i) In respect of the provision of the reference, did the Respondents commit an act of discrimination under the Disability Discrimination Act, constituting a detriment to the Applicant, by the reference being inaccurate and/or delayed.

(ii) Was the Applicant constructively dismissed and was that dismissal an act of discrimination under the Disability Discrimination Act.

12. For the avoidance of doubt, we accept that the Originating Application does not set out a complaint of unfair dismissal under the Employment Rights Act 1996 and that complaint does not arise for consideration."

9. On 23 July 1999 a Notice of Appeal was dated and it was received at the Employment Appeal Tribunal on 2 August. We do not need to repeat the grounds relied upon and we have not asked Mr Allen who has appeared on behalf of the Trust today to amplify those grounds; they are there to be read. But we do see there to be arguable points of law in this case, both as to the reviewability of cases and the practice of review generally and, secondly, as to the course the review has taken in this particular case. The matter thus should go to a full hearing.
10. The Chairman should be asked by the EAT, with copies to be sent by the EAT to the parties when they are received here at the EAT, whether the oral announcement of the Decision on 25 August 1998 led immediately, or shortly thereafter, to the calling into existence of a document within Rule 10 (2) and if not, why not? And whether and when was there a transmission to the Secretary and entry into the Register within Rule 10 (5) and, if there was none until 10 February 1999, why was there such a gap left between 25 August 1998 and 10 February 1999? We will be greatly assisted when the matter comes back to the EAT for a full hearing to know the answers to those questions.
11. There is no request yet for Chairman's Notes and so we make no provision in that behalf. Exchange of skeleton arguments 14 days before the date fixed for the substantive hearing with copies then to be sent to the EAT. The matter should be marked Category A because, as we have mentioned, it seems to raise questions as to reviewability generally, rather than just as to review in this instant case.