United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN FALKENSTEIN (of Counsel) Instructed by: Messrs Gordon Brown Associates 51 Front Street Chester le Street County Durham DH3 3BH


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us as a preliminary hearing the appeal of Miss K Husband in the matter Husband -v- The Durham Police Authority. Today Mr Falkenstein appears for Miss Husband.
2. The papers give rise to the question of in what circumstances it becomes appropriate for an Employment Tribunal, by use of the review mechanism, totally to reverse what had the appearance of being an earlier final Decision, not apparently in error of law, and it gives rise to consideration of cases such as Lindsay -v- Ironsides [1994] ICR 384 and Trimble -v- Supertravel Ltd [1983] ICR 440.
3. The first Decision of the Tribunal, which was at Newcastle Upon Tyne, under the chairmanship of Mr A Fraser, was on 20 December 2000, after a hearing on 20 November 2000, and the relevant part of the Decision was:

"The application not having been presented before the end of the period of three months beginning with the effective date of termination, and the Tribunal being satisfied that it was not reasonably practicable for the complaint to be prescribed within that period…."

[ I think it must be "presented within that period" ]

"…..the complaint was presented within such further period as the Tribunal considers reasonable."

4. The evidence before the Tribunal on that day. 20 November 2000, included a letter of a Dr McMichael of 22 March 2000 that said of Miss Husband:

"There was no way she was capable of pursuing an application to an employment tribunal. She was killing herself with alcohol."

And a little later, as part of the same letter:

"She is only now beginning to get out and about, travel again, do things again and think clearly. I would agree that this lady was not able to pursue a claim during these years and only now is able to see what happened to her in the past, think about it and construct a coherent and viable claim to any employment tribunal."

5. The factual conclusion of the Tribunal at this first hearing was in their paragraph 7:

"We are satisfied firstly that the applicant's illness was a continuing one, and that it did render it not reasonably practicable for her to present an originating application to the Tribunal until she had made some substantial improvement after coming out of hospital during the summer of 1999."

They recognised that that was not the whole of the test that was relevant; they continued in their paragraph 8:

"But that is not the end of the matter. We also have to consider the other element of Section 111(2) - whether the complaint was presented within such further period as the Tribunal considers reasonable."

And on that they said, in their penultimate paragraph:

"Whilst the applicant's memory, particularly as to date, was far from clear, and whilst she was obviously experiencing great difficulty with regard to mobility, we were satisfied that once she thought she might have a claim in relation to her dismissal, she set matters in train by arranging to see a solicitor. Whilst the lapse of time is very long - more than….."

[And I am afraid they have chopped off the number of years]

"....from her actual dismissal we accept the medical evidence that for the majority of this period, the applicant was in no state to consider this sort of matter. We also note that the Police Authority did not suggest that they would be facing any particular difficulties in responding to the claim at this time."

6. Well, that was the result as it first stood, and then there was an application for a review, and that was heard on 3 July 2001. The Reasons were sent to the parties on 14 August, and in a sense, the Decision was at a difference of one hundred and eighty degrees from the first one in the sense that this time, the holding, so far as relevant was:

"1 The application was not presented before the end of the period of three months beginning with the effective date of termination, or within such further period as the Tribunal considers reasonable, the Tribunal being satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months

2 The Tribunal therefore has no jurisdiction to hear the applicant's complaint.

3. The applicant's complaint is accordingly dismissed."

The grounds of the review were set out in paragraph 4:

"…..the interests of justice required a review"

and of the submissions of Counsel to the party seeking the review the Tribunal said at paragraph 7:

"He went on to submit that it had never been the applicant's case that she was unaware that she had a claim. She had merely become aware that it might be possible to present a case out of time. The medical evidence, whilst indicating that the applicant may not have been in a position to conduct a claim, did not show that she was unable to present a claim. She had in fact been able to give instructions with regard to the completion of housing and other benefit forms, which were far more complex than an IT1."

7. So the Tribunal acceded to the request for a review, and ultimately, they identified the question that they needed to look at in their paragraph 13:

"….The question was not whether she was fit enough to proceed with the conduct of the case, but whether it was not reasonably practicable (or feasible) for her to have instituted"

[and they underlined the word "instituted"]

"the proceedings. The medical evidence before the Tribunal did not cover this point, nor was it explained how she had been able to complete (or have completed on her behalf) the much more complicated forms necessary to apply for housing and social security benefits. The applicant gave further evidence on this point."

8. Well, against that total change of direction between the one Decision and the other, we think that there are arguable errors of law giving rise to questions such as whether the Employment Tribunal at the review could properly conclude that the medical evidence dealt only with the active pursuit of proceedings, for which she was not sufficiently fit, rather than including also the mere launch of proceedings, and one has to remember the earlier finding about her not being able to construct a coherent and viable claim, which could be argued to cover even the framing of a claim and not merely the active pursuit of a claim.
9. So there is a question there that requires to be looked into and, as we mentioned at the outset, quite what the limits are of the power to review is a matter on which there is authority, and the case does need to be looked at in the light of that authority. So we think this whole Notice of Appeal can go forward to a full hearing. Skeleton Arguments should be exchanged not less than fourteen days before the date fixed for the hearing. The matter is Category B, and I will ask Mr Falkenstein to give us some clue as to the likely time, but I would have thought two hours.