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United Kingdom Employment Appeal Tribunal
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Hanson v. Pageone Communications Ltd [2001] UKEAT 0540_00_1603 (16 March 2001)
URL: http://www.bailii.org/uk/cases/UKEAT/2001/0540_00_1603.html
Cite as:
[2001] UKEAT 540__1603,
[2001] UKEAT 0540_00_1603
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BAILII case number: [2001] UKEAT 0540_00_1603 |
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Appeal No. EAT/0540/00 |
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
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At the Tribunal |
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On 16 March 2001 |
Before
HIS HONOUR JUDGE PETER CLARK
MRS J M MATTHIAS
MR R SANDERSON OBE
MRS M V HANSON |
APPELLANT |
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PAGEONE COMMUNICATIONS LTD |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
© Copyright 2001
APPEARANCES
For the Appellant |
MRS D O'DEMPSEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme
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For the Respondent |
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HIS HONOUR JUDGE PETER CLARK
- The Appellant, Mrs Hanson was continuously employed by the Respondent as a part time paging operator working a five hour shift on Sundays only from 19 July 1990 until termination of that employment on 28 October 1999. Following termination she presented a complaint of unfair dismissal to the Employment Tribunal on 13 December 1999. The claim was resisted, came on for hearing before a Tribunal sitting at London North on 1 March 2000.
- By a decision with extended reasons dated 13 March the Tribunal dismissed her complaint. In their reasons the Tribunal detail the material events occurring between 16 April 1999 and termination, we need not repeat them here. Based on those facts they found:
1) That the Respondent dismissed the Appellant.
2) That the reason for dismissal related to her conduct, a potentially fair reason.
3) That the Respondent acted reasonably under Section 98 (4) of The Employment Rights Act 1996.
In reaching that finding they held:
A) That the Respondent reasonably concluded that for one, the Appellant had failed to observe the requirements to notify her sick absence, in April, May, July and September.
i) She had failed to keep the Respondent regularly informed of her progress while off sick.
ii) She had failed to attend meetings arranged for 26 May, 4 June, 7 July, 12 July and 19 September.
iii) She had refused to recognise the authority of line management.
iv) She had been rude and aggressive towards Mrs Thompson, a human resources manager and the chief executive's personal assistant.
v) She had refused to give her consent to the Respondent obtaining a medical report from her general practitioner and had refused unreasonably to attend appointments with the Respondents occupational health adviser.
These various features amounted in the view of the Tribunal to a breach by the employee of the fundamental terms of the employment contract, in particular the obligation to cooperate with the employer in his reasonable and legitimate demands.
B) That although a natural justice point arose in that Mrs Jackson, assisted by Mrs Norris of personnel, had reached the decision to dismiss having been involved in events as they unfolded, any procedural defect thereby occasioned was cured by the opportunity given to the Appellant but not taken to appeal to an independent person, the director of finance, who had had no previous involvement in the matter.
- In these circumstances the dismissal was found to be fair. Against that decision Mrs Hanson appealed by a notice dated 10 April 2000. Grounds of appeal numbering seven in all were settled by Mr John Waithe Counsel who had appeared on her behalf below. The appeal came on for Preliminary Hearing before a division presided over by the President, Mr Justice Lindsay on 9 October 2000. On that occasion she was represented by Mr Paul Steward of Counsel under the ELAAS pro bono scheme. For the reasons contained in the judgement delivered by the President on that day the appeal was adjourned, this is the restored Preliminary Hearing.
- In the intervening period the grounds of appeal have been amended essentially to reduce them from seven in number to five. This morning we have had the advantage from submissions from Mr Declan O'Dempsey of Counsel, again under the ELAAS pro bono scheme. It is fair to say that the way in which Mr O'Dempsey puts the case differs to some extent from the amended grounds of appeal but we take no technical point on that, instead we have considered those submissions individually.
- We now turn to those arguments. The first contention is that the Tribunal erred in refusing to accede to an application made on behalf of the Appellant at the start of the hearing on 1 March, that the Respondent's notice of appearance should be stuck out due to their failure to comply with a chairman's order dated 18 February 2000. The argument fails in our judgement simply because that order of 18 February was, on the face of it, patently defective. It reads as follows:-
"On the application of the applicant, a chairman of the Tribunals orders that on or before 23 February 2000 you the Respondent send to the applicant the following particulars of the grounds on which you rely:………………….. and that by the same date you send a copy to this office".
There are then notes in relation to penalties for failing to comply. With an order for inspection or discovery neither of which orders were purportedly made on that occasion. The step of striking out a Respondent's notice for non compliance with an order of the Tribunal is a Draconian one. It is inconceivable that strike out order would be made in circumstances where the order is defective and that it does not identify the particulars which the Respondent in this case was required to give. Accordingly we reject the first submission.
- Next, it is said that the Appellant's Counsel below, Mr Waithe, applied for an adjournment of the hearing in order to consider a bundle of documents handled to him some twenty minutes prior to the hearing. The quotes made here by Mr O'Dempsey are first, that the fact that the adjournment was refused is not recorded in the Tribunals reasons and it follows they gave not reasons for refusing the application. Secondly, he argues that in the circumstances the failure to grant the application for an adjournment offended Article 6 of the European Convention of Human Rights specifically incorporated into domestic law by the Human Rights Act 1998. It seems to me notwithstanding the judgement of the Employment Appeal Tribunal, Mr Justice Knox presiding, in Independent Research Services Ltd v Cateral 1993 ICR (1) that an application for a brief adjournment at the start of the days hearing before the Tribunal which is refused is not a matter which need appear in the Tribunal's extended written reasons for their substantive decision. So far as the Article 6 point is concerned, Tribunals must have a wide discretion to decide in the interests of justice to both parties whether a case is to go on or not. We see no grounds for allowing this appeal to go through on the second ground advanced. Thirdly, a minor factual point is taken, Mr O'Dempsey submits on instructions that the Tribunal were wrong to find at paragraph 17 and 18 of their reasons, that the Appellant was absent on certified sick leave continuously from 29 August until the end of her employment. He tells us on instructions that the Appellant attended for work on 5 September only during that period. Whether or not that is a minor factual error in the Tribunals reasons, we are wholly satisfied that it has absolutely no bearing on the substantive decision reached in this case and we reject that ground also. Fourth, a point was taken on the internal appeal process referred to by the Tribunal at paragraph 38 of their reasons. Mr O'Dempsey's submission proceeds on the assumption, we think, that had no question of internal appeal arisen the Tribunal would have found the dismissal to have been unfair by reason of Mrs Jackson and Mrs Norris taking the disciplinary hearing. We think that assumption is false, what the Tribunal say in the terms of paragraph 38 is this:-
"The Tribunal considered Mr Waithe's submission regarding the alleged breach of natural justice. The Tribunal regarded it as not entirely satisfactory that Mrs Jackson and Mrs Norris should be making the decision to dismiss having regard to their part in the events which had taken place".
Pausing there, we do not read into those words the proposition that but for the question of an appeal the dismissal would have been found to be unfair, taking all the finding of the Tribunal as a whole. Nevertheless proceeding on that premise Mr O'Dempsey's submission is that it was not open to the Tribunal to make a finding that any defect of the disciplinary hearing stage was cured by the opportunity being given to but not taken by Mrs Hanson to appeal. Without a specific finding as to the nature of the potential appeal hearing, was it to be a review or a full re-hearing? See the distinction identified in a number of cases collected in the Employment Appeal Tribunal decision in Lloyd v Taylor Woodrow Construction 1999 IRL 782.
- We think that there is a material difference between a judgement made by the Tribunal as a matter of fact as to whether an internal appeal which took place was in the nature of a review or a re-hearing, and the position as in this case where an applicant is given the opportunity to appeal but does not take it. Mr O'Dempsey accepts that he would not be in a position to challenge the Tribunal's finding had the applicant simply not taken the opportunity to pursue an appeal by way of re-hearing. It seems to us to take the principle in the earlier cases too far for an Appellant who chooses not to take advantage of an internal appeal to then complain that no finding has been made as to the nature of that hypothetical appeal here.
- Finally there is a ground of appeal relied on estopping which is advanced in the amended grounds of appeal but developed in oral submission by Mr O'Dempsey, in our judgement there is absolutely nothing in that point, we are unsurprised that he has not troubled us with expressed submissions on that matter. It follows having considered all grounds of appeal advanced that we see no arguable point of law raised and accordingly the appeal is dismissed.