At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR D J HODGKINS CB
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MS F AHMED (In Person) |
For the Respondent | MR P EPSTEIN (of Counsel) Instructed By: Messrs Akainyah & Co Solicitors 308 Seven Sisters Road London N4 2AG |
JUDGE PETER CLARK:
The Tribunal rejected that contention for three reasons:
(1) the Appellant had adduced no medical evidence in support of that case
(2) in May 1998 her original representative, a retired Trade Union official and academic, was taken ill but she was able to take over the conduct of her case until new advisors were appointed without difficulty
(3) she had made no reference to suffering ill health in her witness statement prepared for the liability hearing in October 1998 dealing with the manner of her treatment at the hands of the employer.
In these circumstances the Tribunal determined that she ought to have obtained alternative employment at the end of four months following her summary dismissal in March 1998 and limited her loss of earnings attributable to the unfair dismissal to that four-month period.
"In reaching a finding of fact that the Appellant was not suffering any physical handicap brought about by the manner of dismissal, the Employment Tribunal took into account two matters not brought to the attention of either of the parties:
(a) that the Appellant's statement prepared for the original liability hearing did not include any reference to the manner of dismissal causing any health problems;
(b) that within two months of the dismissal, the Appellant had taken over conduct of her Employment Tribunal case and corresponded with the Tribunal, thus disclosing (according the Employment Tribunal) that the Appellant "was able to communicate and conduct her affairs properly".
It is submitted that by denying the Appellant the opportunity to comment on two matters that the Employment Tribunal plainly considered important, the Employment Tribunal reached its decision in breach of natural justice."
"In general I agree with the view expressed by the EAT as to how a tribunal should treat and assess matters which they regard as important but which the applicant or his representative has either not mentioned at all or has apparently treated as of little importance. It is however necessary to add that it would be unwise and potentially unfair for a tribunal to rely upon matters which occur to members of the tribunal after the hearing and which have not been mentioned or treated as relevant without the party, against whom the point is raised, being given the opportunity to deal with it unless the tribunal could be entirely sure that the point it so clear that the party could not make any useful comment in explanation."
In addition, Mr Epstein has referred us to two recent EAT decisions, Eltech (UK) Ltd v. Thomson [2000] ICR 689 and Albion Holtel v. Maia E Silva [2002] IRLR 200.