United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS F JEFFREY Appellant in Person


 


MR RECORDER BURKE QC

1. This is the Preliminary Hearing of an appeal by Ms Fiona Jeffrey against the decision of the Employment Tribunal consisting of a Chairman, Mr Hardwick, sitting alone at Reading, supported by extended reasons and sent to the parties on 26 May 2000. By that decision the Tribunal decided that Ms Jeffrey's claims were not claims which the Tribunal had jurisdiction to hear, for two reasons, firstly because they had been presented outside the appropriate time limits, secondly because they were barred by the principles of res judicata and issue estoppel as a result of the withdrawal by Ms Jeffrey of an earlier claim which withdrawal was the subject of a formal adjudication by the Tribunal dismissing those claims.
2. Ms Jeffrey was employed by the Respondent from 1 February 1999 on a three month contract which was extended until 30 June 1999 when it came to an end. It is clear from the documents before us that the Respondents offered to extend the contract by a further four weeks to the end of July if Ms Jeffrey was willing to accept that offer. She did not accept that offer.
3. The originating application, which was being considered by the Tribunal in the decision now under appeal, specified the date of the termination of the relevant employment as 30 June 1999. The notice of appearance agreed with that date. Ms Jeffrey has today accepted that that was indeed the date on which her employment came to an end (although it seems that those responsible for paying her social security benefits may have taken another view). The originating application set out claims for breach of contract, wrongful dismissal and non-receipt of wages. It also said, under number four in box one:

"(possibility of discrimination)"

It does not appear that a discrimination case, which was presumably intended to be a disability discrimination case, was ever being formally advanced.

4. The originating application was supported by twelve pages of detail from which it emerged that the breach of contract claim consisted of alleged conduct by the employers which was asserted to have been outside their contractual entitlement which was seriously unfair to Ms Jeffrey and which she claims resulted in serious damage to her health. In particular, she complained that her employers had moved her to work other than that which she had originally agreed to undertake without consultation and without agreement. The wrongful dismissal allegation arose from the same circumstances. The non receipt of wages allegation related to a disputed salary cheque which Ms Jeffrey said had not been properly authorised and therefore could not be met; this issue was disposed of by agreement before the hearing before the Tribunal and therefore was no longer a live issue at the time of that hearing. The twelve pages of particulars to the originating application do not suggest anything in the nature of discrimination at all.
5. The Respondent took the two jurisdictional points to which we have referred and asked that they be dealt with as preliminary issues. The res judicata and issue estoppel points arose, as we have said, because of the previously withdrawn and dismissed application which was made on 21 June 1999, before the employment ended, but which nonetheless included a claim for wrongful dismissal and also a claim for harassment at work.
6. The Chairman decided on the facts that the three months time limit for presentation of the complaints expired at the latest on 29 September 1999. Therefore Ms Jeffrey's complaints, as set out in the second originating application dated 30 September 1999, were made one day late. He found, at paragraph 25 of his decision, that Ms Jeffrey was well aware of the time limits and that she had, during the period prior to the presentation of the second originating application, received advice from the Citizens Advice Bureau and from two firms of solicitors. We ought perhaps to say that, from what Ms Jeffrey has told us today, the advice may have been from two different solicitors in the same firm as opposed to two different firms of solicitors; but that is a distinction without any substantive difference in our judgement. The Chairman found on the facts that it had been reasonably practicable for Ms Jeffrey to put in her originating application within the time limit and not one day late and that if there was a discrimination claim it would not be just and equitable to extend the time. Thus he decided that all of the claims were out of time.
7. He then went on to apply the principles in Barber v Staffordshire County Council [1996] ICR 379. He held that the matters raised by the first originating application had been finally decided and adjudicated upon and that, in the absence of any real claim for discrimination on the basis of disability or otherwise, the claims made in the second originating application were barred by the principle of res judicata. He decided that, if there was something new in the second application that was not in the first, then it ought to have been put forward in the original claim, applying no doubt the principles in the case of Henderson v Henderson [1843] 3 Hare 100.
8. It is against those decisions of the Tribunal that Ms Jeffrey now seeks to appeal. She has put before us lengthy and detailed Notice of Appeal and skeleton arguments. She has addressed us at length with care and with considerable and understandable passion and concern this morning. It is perfectly clear, on any view, that this is a very sad case. There is no doubt that Ms Jeffrey blames the Respondent's conduct and attitude towards her and her claims before the Tribunal for a serious and lasting collapse in her mental health.
9. We have been through what she has written and what she has told us today with care in order to identify and to try to formulate into what would have been submissions directed towards demonstrating arguable errors of law on the part of the Tribunal, had she been represented. We have identified five general heads of criticism which Ms Jeffrey seeks to make of the conclusion of the Chairman of the Tribunal that her claims were out of time. Lying in the background of all her submissions is her assertion that her health was so badly affected in the period towards the end of her employment and thereafter that she was unable to give proper care to her own affairs or fully to understand what she needed to do or should do for the best. She says, for instance, that she did not herself want to withdraw her first originating application to the Tribunal but acted on advice and did so as a result of advice which, incidentally, we should interpolate, is what the Tribunal Chairman was referring to when in the antepenultimate sentence of paragraph twelve of his decision he said that Ms Jeffrey:

"would not have decided to finish her case because of the health effect on her".

10. The five grounds on which Ms Jeffrey puts this appeal, as we have identified them and confirmed with her that she would like to put them, are as follows:

Firstly, that she was not able to understand what to do or to give proper instructions to those who were advising her as to what to do.

Secondly, that she has or should have a claim for damages for personal injuries arising from the way in which the Respondents behaved towards her and should have an opportunity to establish the facts to show that, to put it shortly, what happened should not be laid at her door, and was the fault of her employers.

Thirdly, that the time limits should be extended because she was too ill.

Fourthly, she does not accept the factual conclusions reached by the Chairman when dealing with the time limit issues because they were based on, at least in part, on the Respondent's allegations.

Fifthly, she seeks to rely on Article 10 of The European Convention of Human Rights which relates, of course, to freedom of expression, although as we have pointed out to her, if there is a point arising under the Convention, it is more likely to arise under Article 6, the right to a fair trial, than under Article 10.

11. We do not propose in this judgment to go into detail of the grounds on which Ms Jeffrey criticised the Chairman's conclusion of the res judicata and issue estoppel issues for reasons which will be apparent shortly.
12. It is of course clear that the Tribunal's decision that Ms Jeffrey was out f time because she was one day late is a harsh one. Ms Jeffrey will understand that in this Appeal Tribunal, we are not permitted to substitute any view that we may have for the view on the facts reached by the Tribunal which heard the evidence and in particular heard Ms Jeffrey give evidence and be cross-examined on matters relating to the time limit and which was entitled to come to conclusions on the facts which can only successfully be the subject of an appeal to this Appeal Tribunal if those conclusions are demonstrated to be perverse or to have failed to take into account something which should have been taken into account, or to have taken into account something that should not be taken into account. We fully appreciate how Ms Jeffrey's health was affecting what she was doing during the relevant period; but it is clear that the Tribunal was fully seized of her arguments on that issue. In paragraph 14 the Chairman sets out considerable details of the complaints about her health over this period which Ms Jeffrey was making, many of which she very fairly repeated to us. The Chairman reached the conclusion that he did, that it was reasonably practicable for the application to have been made timeously, despite having had the evidence about her state of health before him and having plainly considered it. We can see no basis arising from Ms Jeffrey's health for criticism of the Chairman's decision.
13. As to the second ground put forward by Ms Jeffrey, the fact that she wanted to make a claim for damages and, perhaps more importantly to her to have a hearing on the merits so that she can establish to the world that what has happened to her is not her fault, did not permit the Tribunal to decide that it was not reasonably practicable to commence her proceedings within the time prescribed by law, when otherwise it was reasonably practicable. This is another factor that makes this a sad case; but it is not a factor which gives rise to an arguable ground of appeal.
14. Similarly the fact the Ms Jeffrey would have liked an extension because she was ill, however much that may sound like good common sense, does not provide a ground of appeal. The Tribunal found that she had been represented over the relevant period by three advisors or sets of advisors. The law provides that a Tribunal is entitled to take into account in reaching a conclusion on the time limit issues that an applicant has been represented; if those who advise a litigant before the Tribunal do not advise that litigant of the time limits, then it is not ordinarily open to a Tribunal to treat that failure separately from the failure of the applicant herself. They are normally regarded as the same and Tribunal was certainly entitled so to treat them.
15. On the fourth ground we have looked with care at the factual conclusions which the Tribunal reached, both on the reasonable practicability issue and on the just and equitable issue. We appreciate that Ms Jeffrey does not accept them, or some of them; but we see no basis that saying that any of those findings were perverse or could arguable be the subject of an appeal.
16. Lastly we do not see any arguable breach of the provision of Article 10 of The European Convention of Human Rights or for that matter, Article 6. It is difficult to see how the requirement for freedom of speech could be an issue. We do see how the requirement of a fair trial might be an issue; but the principles which apply to the application of Article 6 have established that a member state of the European Community is entitled to lay down rules of limitation which govern proceedings within its own jurisdiction. We see nothing to suggest that the time limits which were applied by the Tribunal in this case could arguably be said to have been in breach of the requirements of Article 6.
17. Therefore we come to the conclusion with some sadness, and with the knowledge that Ms Jeffrey will be very disappointed in the decision, and in us for reaching it, that there is nonetheless no arguable ground of appeal against the decision on the time limits in this case. For that reason it is not necessary to go into the issues of res judicata and issue estoppel, because even if Ms Jeffrey were right about mistakes on the Chairman's part in the application of those principles, her case could not be resuscitated by any such mistake on the Chairman's part because Ms Jeffrey cannot in any event get past the time limits. For those reasons this appeal is dismissed.