United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1. This is the preliminary hearing of an interlocutory appeal by Dr Garg against the case management decisions of Mr Crump, sitting as Chairman, at the Birmingham Employment Tribunal at a directions hearing on 2 October 2001. There is, as will appear, an extremely lengthy history in this case, which arises out of the employment of Dr Garg by the Wolverhampton Health Authority, or other similar bodies, which in practice, came to an end at the end of 1992, although Dr Garg, as will appear, continues to wish to assert that his employment did not, in law, then terminate.
2. It can be seen, therefore, that as there has been no de facto employment relationship between Dr Garg and the Respondents, or any of them, since December 1992, and that proceedings have been issued in the Birmingham Employment Tribunal since 1993, and have not been tried, it is utterly essential that they should now be tried, in the mind of Mr Crump, and that is what the hearing on 2 October 2001 was dedicated to achieving.
3. There was at that stage an imminent fixed hearing. Unfortunately, due to Dr Garg's ill-health at that time, although one is pleased to note that he is, at any rate, physically robust, so far as can be seen today, that hearing was adjourned, but plainly, now we are into 2003, it would be anticipated that, subject to Dr Garg's having recovered his health, it would be tried speedily, in accordance with Mr Crump's directions.
4. The hearing that took place was, first of all, dedicated towards trying to clear a way for precisely what would be tried, and when, and two matters of appeal, to which we will refer, arise out of those matters; the third matter arises by way of appeal in respect of an application that Dr Garg made for Witness Orders. Those are the three issues which fall before us today, which we shall summarise in a moment, but we have been presented with a mass of papers, which we have had and taken the opportunity of reading, which sets all this into context; and it has not been easy for Dr Garg to appreciate that this Tribunal is dealing simply with an appeal against the interlocutory Orders of the Chairman made on that one occasion, and has no capacity to try and order Dr Garg's life for him, insofar as this litigation appears, since 1992, to have become his life.
5. We have indicated that he remains determined that he was not dismissed in December 1992, and indeed, asserts that he remains in the employment of those for whom he has not in fact worked, now, for nearly eleven years. That was not his initial position, because he himself was asserting that the employment terminated in 1992, in the early stages of the litigation. Suffice it to say that the Employment Tribunal concluded, on 1 September 1993 that the Appellant was dismissed, or, at any rate, that his contract of employment came to an end, on 31 December 1992.
6. The Appellant appealed to the Employment Appeal Tribunal in respect of that finding, and that appeal was dismissed in these words by Morison P, in his judgment on behalf of the Employment Appeal Tribunal, sitting with Mr Hodgkins and Mrs Prosser, on 9 April 1999:

"It follows, therefore, that there is no arguable point of law in relation to the finding of the effective date of termination of the contract, and we therefore dismiss that part of the appeal."

7. Dr Garg sought permission to appeal from the Court of Appeal, and that came before the Court of Appeal on 6 March 2000, and Lord Justice Sedley, on behalf of the Court, dismissed that application for permission to appeal, and concluded that the position must remain as it was, namely as found by the Employment Tribunal, that the contract came to an end as of 31 December 2002. Lord Justice Sedley pointed out that Dr Garg, the Appellant, was seeking now to say that he was not dismissed at all, and Lord Justice Sedley concluded that that was unarguable.
8. In those circumstances, the Court of Appeal has spoken, in relation to the termination of date of the appeal. Whereas, in fact, as we understand the law, there can be no appeal to the House of Lords against refusal of permission to appeal to the Court of Appeal, in any event, Dr Garg, even if that were not so, has not attempted, so far as we can see, to petition the House of Lords; and so there is binding authority. Dr Garg has reminded us that there are limited circumstances in which the Court of Appeal can be invited to set aside or re-open its own decision and that may be the case, but that has not been sought to be done by Dr Garg, and it is not for us to do anything other than say that it is, indeed, in only very limited circumstances that that jurisdiction, if it exists at all on any general basis, can be adopted, and he has not yet sought to attempt it, as we have indicated.
9. In those circumstances, that means that the Employment Tribunal hearing, as soon as it is to be heard, will be going ahead on the basis of a termination of contract on 31 December 1992. That means that there can be no claim such as Dr Garg has sought to put forward, and as, indeed, he explained to Lord Justice Sedley in the Court of Appeal hearing to which we have referred, and which formed part of Lord Justice Sedley's conclusions that no matter could be put forward which contradicted the employment termination date to which we have referred. His case that there has been deduction of wages since December 1992, of which he can complain because he is still employed, must fall away and cannot be pursued; and it is in a challenge to that conclusion of Mr Crump that one of the three grounds of appeal of the Appellant consists. It is entirely clear that insofar as the Appellant complains about non-payment of wages, in whole or in part, since 31 December 1992, that cannot be pursued; the Employment Tribunal has no jurisdiction to hear it, and, consequently, what began, so long ago did it commence, as a Wages Act 1986 claim, but must now be characterised as a claim by reference to section 13 of the Employment Rights Act 1996, does not form part of the ongoing claim in the Employment Tribunal.
10. Mr Crump made clear that it was for the Appellant to make up his mind whether he wished to pursue claims based on unfair dismissal or redundancy which certainly the Chairman understood to be part of the extant claim by this Appellant in the Employment Tribunal; but it is plain that unless and until Dr Garg finally recognises the inevitable, and accepts that he ceased to be employed on 31 December 1992, and that he has no surviving realistic avenue in which to challenge that conclusion, he does continue to assert that he was not dismissed, and therefore does not wish to bring those claims. That is, as the Chairman made clear, and as we have made clear to Dr Garg today, a matter entirely for him. He has submitted before us today, although we have not looked at the Originating Applications, that, indeed, unfair dismissal and redundancy do not even form part of his claim.
11. If that be right, then it would mean that if he now, at any stage, sought to activate them, or bring them, he would, one would have thought, plainly, be vastly out of time; but we make no adjudication in that regard, and it appears to have been accepted that the claims have been made, indeed, as we understood it, it was within the context of the making of those claims that the original effective date of termination was adjudicated by the Employment Tribunal; and the position remains, and he does not seek any appeal in respect of it, but we simply mention it for completeness, that, on the face of it, the Chairman and, indeed, Mr Dean, of Counsel, for the Respondents, has taken the view that it is, at the moment at any rate, until, no doubt, the crunch time comes at the hearing itself, a matter for the Appellant as to whether he does or does not pursue claims based on unfair dismissal, or dismissal by virtue of redundancy. What he is in any event pursuing is his race discrimination claim.
12. So far as that claim is concerned, he stated in his Skeleton Arguments and written submissions put before us that he did not accept that he had reached agreement with Mr Dean. of Counsel, in relation to precisely what the issues falling within his race discrimination claim, were. There is plainly an issue as to that because not only do the Respondents assert that there was fully consensual discussion, as a result of which the issues which are to be tried emerged, but the Chairman, in his comments, has indicated to us that he was told at the time, openly, in open Court, with the apparent agreement of Dr Garg, that the issues were in fact now common ground. But as Dr Garg has accepted, by not pursuing this dispute in oral submissions before us, in essence the question whether there was or was not agreement, is now water under the bridge, and we can simply recite the Order eventually made.
13. Dr Garg was putting forward before Mr Crump an argument which, in the event, was not resisted by Mr Dean orally, although he had resisted it on paper, that the issues to be tried by way of his racial discrimination claim, were broader than, at any rate, Mr Dean had been prepared to accept; and the Order that was made by the Chairman has allowed for a substantial number of issues to be tried as part of the race discrimination claim, which Mr Dean had asserted were either too late or not for some other reason to be included. The Order that Mr Crump made, by reference to paragraphs in the written submissions of Mr Dean, very sensibly as it appears to us, is that Dr Garg's allegations set out in paragraph 8 of Mr Dean's written submissions should be tried as part of the race discrimination claim, notwithstanding the opposition by Mr Dean that had been set out in paragraph 9 of his written submissions, and all Dr Garg's allegations summarised in paragraph 10 of Mr Dean's written submissions, should, again notwithstanding Mr Dean's opposition, also be tried. Finally insofar as there were three matters mentioned in paragraph 11 of Mr Dean's written submissions which, on their face, could not possibly form the basis of independent causes of action, certainly none that were anywhere near in time, the Chairman ordered that those matters could not be tried as independent causes of action, but that evidence about them could be adduced, as relevant, in the context of trying the other race discrimination matters. That appears to us, and, as we have indicated, it does not form the basis, in the end, of any challenge by way of appeal by Dr Garg, to be an entirely sensible way of going about the trial of the race discrimination matters, which ought now, subject to what we shall say hereafter, to be speedily dealt with. That concludes our summary of the factual history of the Employment Tribunal proceedings and deals with the first of the three grounds of appeal of Dr Garg - the Wages Act point.
14. We turn to his second ground: he asserts that the Chairman erred in the exercise of his discretion in refusing an application by Dr Garg for an adjournment, not on the basis of his health, because that was, in the event, granted subsequently, but on the basis that the Employment Tribunal trial of the issues of race discrimination should be stayed or adjourned, pending the hearing of what were described as his High Court proceedings.
15. That application was refused by the Chairman. The High Court proceedings can be very briefly summarised: there was a writ issued on 6 October 1995 by Dr Garg against Wolverhampton Health Authority and the Royal Wolverhampton Hospitals NHS Trust. It was 1995 G 1443. It appears that it was not initially served, and consequently, it was renewed; in those days, renewal was granted slightly more easily than it is now, and it was renewed until 5 April 1996. No step in that action has been taken since the renewal on 6 February 1996, so that that general endorsement of writ remains the only relevant document in those proceedings.
16. It was a claim for personal injuries suffered and loss of expense and inconvenience incurred in both contract and tort caused by the negligence and breach of statutory duty of the defendants, their servants or agents, and it arose out of personal injuries sustained by the Appellant on Thursday 8 October 1992 in Ward B9 of New Cross Hospital, Wolverhampton, when it appears that Dr Garg suffered an extremely unfortunate and distressing injury. Dr Garg has shown us that he had legal aid for that writ, and that that legal aid has been transferred to a fresh firm of solicitors as recently as 2000, but no step in that action whatever has, as we have indicated, been taken, and it appears wholly unlikely to us that the High Court will ever permit that writ to be re-activated. But at any rate, if it is re-activated:-

(1) it has not yet been, and to set that fact against an Employment Tribunal hearing which can imminently be tried really hardly needs emphasis as to which is the more likely to occur first; and

(2) as we have indicated, it relates, on its face, to personal injuries suffered during his employment and only therefore peripherally to the matters which are really an issue between the parties in the Employment Tribunal proceedings.

17. There is then a second writ, which was issued three years later, in the absence of any steps being taken to activate the October 1995 writ, which, of course, in any event, being a personal injury writ, carries with it a three-year limitation period. It was on 15 October 1998, about three years to the day after the moribund first generally endorsed writ, that a second generally endorsed writ was issued in the High Court against Wolverhampton Health Authority alone, and this was said to be for loss and/or damages suffered by the Plaintiff as a result of the Wolverhampton Health Authority's negligence, acts or omissions in its capacity as the Plaintiff's employer, and inter alia it was based on an assertion of continuing employment by the Wolverhampton Health Authority, after December 1992. That writ also has never been supplemented by service of a statement of claim.
18. An application to strike out that writ was brought by the Defendants on two bases:

(1) that it should be struck out for want of prosecution, and

(2) that it should be struck out as being inconsistent with the conclusion of the Court of Appeal as to determination of employment made in the employment proceedings to which we have referred.

Master Rose struck out the proceedings on the first basis only, while reserving any questions on the second issue, on 28 June 2001. Dr Garg sought permission to appeal from the High Court and Mr Justice Gray refused permission to appeal on paper on 5 September 2001. Dr Garg renewed his application for permission to appeal, as he was entitled to do, in open Court and the matter was heard by Mr Justice Wright on 12 December 2001, when he was represented by Counsel, and the application for permission was refused. That, as we understand the law, is the end of that action, because there is no appeal to the Court of Appeal available against the refusal of permission to appeal to the High Court, but even if there were any remedy by way of approach to the Court of Appeal (which we are clear that in law there is not), none was made by Dr Garg, and he has shown us a letter from a firm of solicitors some time last year, saying that they would need to put in funds before they made any such application, but the letter does not hold out as, in any event, one would expect it would not, any prospect of any success in law or otherwise for the making of any such application.

19. It is in that context that the choice which was put before the Chairman was between carrying on with proceedings which were ready for trial and which related largely, if not wholly, to various allegations of racial discrimination (we say largely if not wholly, because of the issue to which we referred to earlier of whether Dr Garg would wish any other claims to be tried by the Employment Tribunal as well) compared with two writs, which have been referred to in the course of the hearing today as being dead - if they are not dead, then they are certainly totally dormant.
20. Dr Garg has shown us all the familiar cases which face, and over the years have faced, an Employment Tribunal where they are asked to stay or adjourn Employment Tribunal proceedings because of pending High Court proceedings, usually, at any rate, in the days before the jurisdiction of the Employment Tribunal extended to breach of contract cases, where there was also a pending claim in the High Court for wrongful dismissal, and it was a balancing act for the Employment Tribunal, exercising their discretion properly, to decide which of the two proceedings should go forward first.
21. We are well familiar with all those cases, but they are a million miles away from this position, and it appears to us that there can be no conceivable doubt about the proper exercise of this Chairman's discretion to go ahead with the Employment Tribunal case, rather than stay for the wholly unlikely prospect of either of these two writs being revived, but in any event, even if they were:

(1) they would not themselves be likely to come for trial for many, many years; and

(2) if they did, none of what was likely to be tried would impinge upon the speedy resolution, now, hopefully, after all these years, of Dr Garg's allegations of racial discrimination.

That disposes of Dr Garg's second ground of appeal.

22. The third matter related to Witness Orders. It appears that he sought a Witness Order from the Chairman in relation to a Dr Kelleher and was granted it. In addition, he sought Witness Orders in relation to two other gentlemen, who the Chairman was satisfied would not be likely, on what he was told, to be giving any relevant evidence, relating to the race discrimination matters, at any rate, which were before him. They were a Mr Rendall and a Dr Shekhawat.
23. The Tribunal was satisfied that the most that either of those two witnesses could do would give evidence relating to the date of termination of the contract of employment, which was an issue to which we have already referred, and which was definitively decided by the Court of Appeal and the Employment Appeal Tribunal, and therefore would not to be an issue at the pending Employment Tribunal hearing before Mr Crump. We have seen nothing which could cause us to doubt that that discretion was properly exercised; if, in fact, either of those two witnesses have any evidence relevant to give to the issues which actually are going to be tried at this hearing, as defined by reference to paragraphs 8, 10 and 11 of Mr Dean's submissions, as incorporated into Mr Crump's Order, then it may be that, particularly if he can obtain witness statements from them, Mr Garg might be able, on the basis of such fresh circumstances, to make a further application to the Chairman, properly supported. We say nothing about whether that is possible, but certainly on the basis of the information available to us today, we are completely unable to say that either the reason put forward by Mr Crump was wrong, or that the exercise of its discretion to grant one Witness Order, and refuse the other two, was one that could be challenged in law.
24. In those circumstances, we dismiss this appeal.