United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS U BURNHAM (of Counsel) Appearing under The Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Ms L Logotse in the matter Ms L Logotse v London Borough of Camden. Ms Logotse was a nursery nurse, as the title then was, in the employ of the London Borough of Camden. Today she has been represented by Ms Burnham under the ELAAS scheme and we are very grateful to Ms Burnham who has put her case as forcefully as it can be put. Indeed, I do not think there is anything that could be said on Ms Logotse's behalf that has not been forcefully drawn to our attention by Ms Burnham.

1. On 28th October 1998 Ms Logotse presented an IT1 against the London Borough of Camden. It claimed:

"(1) For unfair treatment and dismissal

(2) For ignoring my call for help with the Risk Post to the safety and security of my life and that of the children in our care."

2. It was met with an IT3 on behalf of the London Borough that said, inter alia, in its paragraphs 3 and 4:

"3. The Applicant retired from the Respondent's service in July 1998 on the grounds of ill-health. The Application had been on continuous sick-leave from 10th November 1997. The Applicant appealed against the decision to retire on ill-health grounds to a staff Appeals Committee on the 13th October 1998, convened in accordance with The Council's procedures. The appeal was not upheld.

4. The Respondent avers that it has at all times treated the Applicant fairly and reasonably and in accordance with the Respondent's procedures."

3. So that gives some outline of the sort of contest that was going to take place, but it plainly was rather loosely framed at that stage.
4. On 8th December 1998 the Chairman gave some directions. On 28th January 1999 there was a directions hearing at which Ms Logotse appeared in person.
5. On 1st February 1999 a letter was written on behalf of the tribunal to Ms Logotse on the one hand and the representative for the London Borough of Camden on the other, and it began:

"I write to record what was agreed and directed by the Chairman, Mrs T J Mason, at the Interlocutory Hearing held on 28 January 1999 attended by the Applicant in person and by Miss E Landry, solicitor for the Respondent."

That letter sets out, at some length, the details of the directions that were then given. In paragraph 4 it sets out the position as to further and better particulars required from Ms Logotse. It will be recollected that her claim was very loosely framed in her IT1 and particulars really screamed out for being given. It said:

"4. Particulars of the originating application. The Applicant gave her definitive particulars to date which are on file dated 28 January 1999 and supersede all other particulars.

Those are particulars that are not in front of us but which had already been given and which gave some detail of her claim. The remaining particulars which were then ordered were of a different character and they are as follows:

(1) The Chairman ordered that the Applicant shall, on or before 15 February 1999, provide the names of others who were treated differently with whom the Applicant compares herself, giving details of the treatment accorded to them and how the treatment accorded to the Applicant was less favourable.

(2) The Chairman ordered that the Applicant shall, on or before 15 February 1999, provide full details of the disability from which the Applicant says she suffers giving details of in what way she alleges it amounted to an impairment which had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities."

It is plain from the nature of those particulars, which were ordered, that the tribunal were perhaps generously allowing Ms Logotse's case to go into sex or race discrimination and into disability discrimination, which was a fairly generous reaction, given the nature of the IT1, but by no means improper. But, of course, if that sort of case was going to be run it really needed to be particularised and hence the order for particulars.

6. The order for particulars in the letter of 1st February 1999 was accompanied, as is a standard form, with a page called "Note as to the effect of an Interlocutory Order" and paragraph 2 of that reads:

"Failure to comply with Orders for INSPECTION and/or FURTHER PARTICULARS and/or WRITTEN ANSWERS may result in the Originating Application … being struck out in whole or in part before or at the hearing and the proceedings dismissed …"

7. Particulars were not received. On 26th February 1999 the tribunal wrote to Ms Logotse and said this:

"I refer to the Tribunal's Order for particulars of the originating [application] dated 1 February 1999. A Chairman of the Tribunals has asked me to write to you.

Under power conferred by Rule 4(7) of the Employment Tribunals Rules of Procedure 1993, the Chairman is considering whether to strike out the Originating Application for failure to comply with the Order. If you wish to give reasons why this should not be done, please send them to me in writing within 14 days of the date of this letter."

Well, it seems that nothing was heard.

8. On 19th March 1999 Ms Logotse's case was struck out altogether for failure to comply with the Order for Particulars. There was a Striking Out Order sent to the parties on 23rd March 1999, paragraph 4 of which reads:

"No reasons having been provided in answer to that letter [that is a reference to the letter of 26th February 1999] I order that the Originating Application be struck out."

9. That is March of 1999. There was then a long gap until July 1999 when a firm of solicitors acting on Ms Logotse's behalf, Dozié & Co, write on 7th July 1999 to the tribunal at London (North). There had in fact been communication in the meantime, directed to London (North), because in April 1999 Ms Logotse had written a letter to the tribunal, but of course, by then, the case had already been entirely struck out.
10. In July 1999, Dozié & Co, invited the tribunal to consider reopening the case. They say at the end of the letter:

"We would therefore ask the Tribunal to use its discretion in re-instating Ms Logotse's application."

It is not an appeal against the decision to strike out and, of course, would have been out of time if had been. It is not, in point of language, a request for a review, but that is what it was eventually treated as. A hearing was fixed for 14th June 2000 at 10 a.m. as an appropriate time for the hearing of an application to reopen the case. At this stage Dozié & Co seem to have fallen away and on 6th June 2000 a different firm of solicitors, Tayo Arowojolu, write on behalf of Ms Logotse saying:

"Our client is currently in hospital for treatment. In view of this unforeseen situation, we are asking for an adjournment of the hearing fixed for 14th June 2000 at 10am."

The tribunal on 9th June returned to the new solicitors saying at paragraph 2:

"2. A Chairman of the Tribunals has considered carefully all you say and has balanced that against the desirability of bringing this case to a hearing without delay.

3. The Chairman refuses your request for the following reason(s):

(1) The Chairman cannot consider the merits of your request unless you send a medical certificate or Doctor's letter stating specifically that you will be too ill to attend the hearing.

(2) Moreover your opponent [Camden] has objected to the postponement requested for the following reasons:

(i) It is not clear how long a delay will be entailed if the postponement is granted.

(ii) The case is an old one which the Respondent was surprised was allowed to come back for a review.

(iii) The Respondent has gone to considerable trouble to retrieve its files for this case.

(iv) The Respondent does not feel that it would be further prejudiced by a postponement, but would like some indication of when the Applicant would be available again."

That was in June 2000. From 13th May 2000 to 22nd June 2000, but certainly over the hearing on 14th June, Ms Logotse was in hospital.

11. The tribunal's indication that it would need a medical certificate if it was going to adjourn the hearing for 14th June did not lead to the production of a medical certificate before 14th June and accordingly the hearing on 14th June was not postponed ahead of the 14th June and took place. At that hearing Ms Logotse was represented by Ms Walters of the new incoming firm of solicitors and, indeed, the respondent Camden also was represented by a solicitor. The unanimous decision of the tribunal was that:

"… the application to set aside the Order of 19 March 1999 [the striking out order] fails and the decision that the action be struck out is upheld."

That decision was sent to the parties on 29th June 2000 and on 1st September 2000 the Notice of Appeal was received. I am bound to say that it seems to me that it was out of time but no point has been taken on that ground. It is dated 30th August 2000 but was actually not received until 1st September 2000. So the point not having been taken, we will treat the Notice of Appeal as a valid Notice of Appeal. It may be it was saved by a Certificate of Correction: at all events we treat it as valid.

12. The Notice of Appeal sets out two short grounds:

"1. The Applicant was hospitalised from 13th May 2000 to 22nd June 2000 and therefore could not attend the hearing. [That was the hearing on 14th June 2000]

2. Applicant's Solicitors were notified of the Applicant's illness and inability to attend the hearing about 10 days before the hearing. Further a medical letter was handed over to the Solicitors on 26th June 2000 but she failed to draw the Tribunal's attention to the Applicant's condition. Copy letter attached."

In the attached copy letter (which does not seem actually to be dated by the doctor and in fact we have not been referred to a date in the course of the morning) says this:

"This lady presented to our casualty department after a sudden onset headache and unsteadiness."

13. Returning to the chronological history from February 1999: the Order for Particulars was made on 1st February 1999. It was for them to be supplied on or before 15th February 1999. The accompanying standard form gave a warning, that we have already read from. On 26th February 1999 a warning letter was sent and that we have already cited. On 12th March 1999 the 14 days from the 26th February 1999 expired and nothing had been heard. Accordingly, on 19th March 1999 the IT1 had been struck out and on 23rd March 1999 the decision to that effect was sent to the parties. On 4th May 1999 the 42 day period for appealing against the striking out decision expired and there had been no Notice of Appeal. There is no appeal against the striking out on 23rd March 1999. As I have indicated, on 27th July 1999 Ms Logotse's then solicitors asked, in effect, for a review and that review application was convened for 14th June 2000. We have cited the unanimous decision of the tribunal on that question. A jurisdictional point was taken at the review decision that was dealt with at paragraph 12, in particular, of the tribunal's reasons, they say:

"12. The Respondents claim that, in fact, the Tribunal has no jurisdiction to hear this Application because under Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 any request for a review must be entered within 14 days if not asked for at the time. The application for review was dated 27 July 1999 and the Striking Out Order was sent to the parties on 23rd March 1999. Accordingly the application for a review was considerably out of time. However, we have allowed the Applicant's representative to make her claim. In the event, her claim on behalf of the Applicant fails.

13. We find that there are no grounds for a review and, in particular, no grounds for holding that the interests of justice require the setting aside of the Order.

14. In the above circumstances, we do not set aside the Order. We sustain that Order of 19 March 1999 and, accordingly, the claim remains struck out."

14. Strictly speaking, whilst they received the argument that there is no jurisdiction, they do not rule that there was or there was not. It seems clear from Rules 11(1), 11(3) and 11(4) that there was no jurisdiction to hear the review. There was no application for an extension of time under Rule 15, which would have needed to have been made in order to bring the case within jurisdiction. It would, of course, have needed a compelling case to be made, given the very considerable length of time between 23rd March 1999 and 27th July 1999, in order to get an extension of time for the period during which a review might be sought. So there was a jurisdictional argument against Ms Logotse on 14th June 2000 which would have sufficed to bar her claim in any event. But let us consider the matter more broadly, as Ms Burnham would very much want us to do.
15. Ms Burnham says that the decision was perverse not to reopen the case by way of a review and set aside the decision to strike out. Chief of all the grounds on which she relies is to be found in paragraph 8 of the tribunal's decision. In paragraph 8 they say:

"8. The solicitors acting for the Applicant wrote to the tribunal on 6 June of this year stating that the Applicant was in hospital for treatment. They sought an adjournment of today's hearing. In reply to that letter the Tribunal wrote to the Applicant's solicitors on 9 June stating that the request for an adjournment was refused because the Chairman could not consider the merits of the request unless the Applicant sent in a medical certificate or doctor's letter stating specifically that the Applicant was too ill to attend the hearing. Ms Walters today say that she wrote to the Applicant at her home rather than to the hospital and that, with hindsight, it might have been better for the letter to have gone to the hospital or for the solicitors to have personally contacted the Applicant. In the event, they did not do either of those things and, in the event, the Applicant had not attended. Ms Walters, on behalf of the Applicant, has valiantly striven to persuade us to set aside the Striking Out Order."

It is notable there that Ms Walters does not claim not to have been given adequate instructions for the hearing of 14th June 2000; she does not, as it seems, apply for an adjournment on the ground that she had not been able adequately to get instructions to deal with the case on 14th June, Moreover, when Ms Burnham was asked more than once what point could possibly have been advanced had the matter been adjourned and had Ms Logotse had a fuller opportunity to attend, what possible point was there which could have been raised that had not been raised by Ms Walters, who, as we have noted, valiantly strove to persuade the tribunal to set aside the Striking Out Order? We have not understood there to be any point of substance that could have been argued had only a greater opportunity been given to Ms Logotse to give instructions to Ms Walters or, indeed, to attend.

16. The case is described as one of perversity. But if we ask accordingly whether no tribunal properly instructing itself could have come to the decision which this tribunal came to, we would have to answer that we could not so conclude. A review application does not entitle a tribunal simply to set aside some earlier decision because they feel that it might be not inappropriate to do so. It is a relatively limited jurisdiction. It is to be remembered that there had been no appeal against the strike out and so a special case needed to be made for a review and it is hard to see what case could have been made. Ms Burnham argues, forcefully, that the Human Rights Act 1998 comes into play in this matter and she refers to 'equality of arms'. But, whatever that expression means - and no doubt over the coming months and years there will be increasing litigation to discover precisely what it does mean in practical terms - it is hard to see that one can describe the hearing of 14th June 2000 as representing some form of inequality of arms given that both sides were represented by solicitors and that there was no application such as to suggest that either side had not been able adequately to take in instructions.
17. Ms Burnham rather suggests that had further time been afforded and the hearing of 14th June 2000 had been adjourned, what might have been capable of being produced was medical evidence suggesting that Ms Logotse had not been able before the striking out to deal with affairs adequately and that that might have led to a stronger case for the Striking Out Order being set aside. But, of course, the Striking Out Order went back to the first quarter of 1999. There is no conceivable case made out that there had not been ample opportunity for collection and presentation of medical certificates or medical information or evidence relating to that period being available to be laid in front of the tribunal on 14th June 2000.
18. We have heard, as we have indicated, Ms Burnham at length. She has put her case with great force. But we are unable to see this as a case of perversity or of any form of injustice and, doing the best we can, we see no arguable point of law, and it has to emphasised that it is only points of law that we are dealing with at this stage and only arguable ones at that, that can be found in Ms Logotse's favour. The tribunal in their paragraph 10 said:

"Nothing we have heard today has demonstrated any grounds for setting aside the Order of 19 March 1999 (sent to the parties on 23 March 1999)."

The tribunal then went on at paragraph 11:

"Tribunals always 'lean over backwards' to make sure that unrepresented parties have everything explained in detail. In this case we are satisfied that the Applicant knew what was being requested of her and simply failed to respond despite the warning letter and despite the notice sent with the original Order."

In other words, no case was made out for a setting aside of the Striking Out Order and we are unable to detect any arguable point of law in the tribunal's extended reasons and accordingly, we must dismiss the appeal.