United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR JUSTICE BURTON: This is a preliminary hearing of is an appeal by Ms Lewis against the decision of the Employment Tribunal at London (North) dismissing her claim to have been unfairly dismissed by the Royal Free Hampstead NHS Trust.

1. The decision of the Employment Tribunal was given by Mr Walker in relation to a hearing which occurred on 30th September 1999. On that date Ms Lewis did not appear at the Tribunal. It appears from the very short decision given by Mr Walker that he referred to the procedural history of the matter:

(1) He stated that her Originating Application dealt with her claim very sparsely, but that details were subsequently given on 5th August 1999 by her then representative, the Royal College of Nursing.

(2) The basis of her defence would be that there were falsified statements, and that her mental health problems had not been taken into account when her employers made judgements about her behaviour at work.

(3) He referred to the fact that the case had been originally listed for hearing but postponed. It appears to us that if and insofar as any suggestion was made that that was the responsibility of the Appellant, it was not. She has been unable to assist as to why there was the original postponement, but it appears to us clear that this must have been at the instance of the Respondent because there is a reference to its requesting that the matter be not heard until after the internal appeal on 23rd August in its Notice of Appearance, and if that were right then that was a very sensible course taken, and if the Employment Tribunal listed the matter, it was clear that they should not have done and certainly any postponement could not be laid at the door of the Appellant.

(4) The Chairman referred to the fact that the case had been listed for hearing on 30th September and that there had been recent correspondence with the Applicant whereby she first said that she was going to be on holiday and then said that she no longer had a representative and wished the case to be postponed. It is unclear to us whether by using the words "first said" and "then said" the Chairman is intending to refer to there being two letters, or whether it is a somewhat dissatisfied reference to one letter which he was treating as an unsatisfactory letter, but whichever it is, Ms Lewis has told us that in fact the position was that she did not know of the hearing, that her then representative the Royal College of Nursing had failed to inform her of it, she discovered it by chance only the day before a holiday that was already booked, and that she requested an adjournment to the Employment Tribunal the day before she went on holiday immediately she learned of the hearing of which she had not known at the date the holiday was booked, and she also confirmed that by then she had become dissatisfied with her representation and was intending to represent herself. Whilst she was on holiday, the application was rejected on 24th September, notification of which she was given on her return from holiday.

Against that background the Tribunal concluded that it would proceed in the absence of the Appellant, who was described as not having attended nor having sent any further message.

2. The Chairman recited that the Tribunal had heard evidence given by a Ms Sills and had looked at documents. In two very short paragraphs the Tribunal indicates that the application in the light of that evidence would be dismissed.
3. Notification of the decision was given to the Appellant on 26th October 1999. It is not clear to us what if any steps the Appellant had taken on return from holiday to see whether her request for an adjournment had been successful. This is not a matter which we have asked the Appellant today.
4. When she received that decision, she tells us that she took advice from a local advice centre and was told that she should appeal, which she did, I think just within the 14 day time limit which would have been applicable for a review application. The matter now comes on before us, as I have indicated, by way of a preliminary hearing in respect of that appeal.
5. It is quite clear to us that there is no material upon which we could decide whether there is an arguable appeal, never mind how to resolve it. What Ms Lewis said in her Notice of Appeal is that:

"(1) The findings of the Tribunal are PERVERSE

(2) The case against FMS LEWIS is based on falsified statements

(3) FMS Lewis' representatives (the RCN) were negligent in not keeping Ms LEWIS fully informed of hearing dates."

So far as the last point is concerned, that would go to being an explanation as to why she did not attend at the first hearing, but is not a matter of substance.

6. So far as the first two points are concerned, there is no way in which we could conclude that this could go forward by way of appeal. First of all we do not know the facts either way and secondly, given that Ms Lewis did not attend before the Tribunal, it is inconceivable that we could conclude that the evidence that the Tribunal heard should have been rejected or that no reasonable Tribunal could have accepted it, when in fact it was unchallenged on her non-attendance. In those circumstances, on the material before us, an appeal would be hopeless.
7. It may be, however, that Ms Lewis may have some chance of following an alternative route, namely, an application for a review of the decision. It is quite plain, as I have indicated, that the reasons given by the Tribunal for their decision are very exiguous indeed. They are described as extended reasons, but are hardly extended. The reason this was done was perhaps the thought by the Tribunal that the matter was now being put to bed permanently, a conclusion having been reached from the procedural history which the Tribunal had recited that it may be that the Applicant had lost interest in her application. But it turns out that she had far from lost interest, and is keen both to pursue the matter and at the very least to know the basis of the case which, on the one hand, if she were allowed to revive the case, she would have to meet, or more significantly at the moment, which she is not allowed to meet because it has been concluded against her. So on any basis there is little to go on, and no doubt that would be a matter that she could ask the Employment Tribunal by way of a review.
8. But more significant than obtaining extended reasons is that she wishes, if possible, to have a full hearing of her application. Whether she will be entitled to do so depends entirely on the discretion of the Employment Tribunal. First of all the Employment Tribunal would have to conclude that there was a reason for her not having made her application for a review within 14 days. It may be that the Employment Tribunal would be prepared to take the view that as she went down the wrong route, namely an appeal to the EAT, but within the appropriate time limit for a review application, her failure to follow the review route could be excused. But that would be a matter for the Tribunal. Secondly, the Tribunal will have to decide whether to hold a review, notwithstanding her failure and indeed because of her failure to attend on original occasion. That again, will be a matter for them. They will have to be satisfied:

(a) that there are good reasons for her non-attendance due to her being on holiday at the material time; and

(b) that if they were to agree to a fresh hearing before them there would be some substance in it, and some grounds for believing that the decision would be a different one.

Again, that must be a matter for them and it will be up to the Appellant to make sure that sufficient material is placed before the Employment Tribunal to allow it to exercise that discretion.

9. For the reasons that I have given, this appeal must be dismissed.