United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MS J COLLIER (of Counsel) Instructed by: Office of the Solicitor Department for Work and Pensions Department of Health (Employment Team) New Court - Room 523A 48 Carey Street London WC2A 2LS


 


HIS HONOUR JUDGE PETER CLARK

1. At the commencement of this hearing, which is convened to consider the single ground of appeal permitted to proceed at a preliminary hearing, held before a division presided over by Mr Justice Maurice Kay on 11 September 2002, subject to an observation made by Miss Collier on behalf of the Respondent, which was later withdrawn, the Appellant made nine applications.
2. Having heard argument on each of those applications our ruling is as follows.

(1) On her application that the hearing today should be recorded, we shall not depart from the usual practice that hearings are not recorded in the Employment Appeal Tribunal, particularly in circumstances where her husband is present to take a note of anything which needs noting. However, this ruling will be transcribed as will any subsequent judgment which the Tribunal delivers today.

(2) We are asked to make no mention of either Miss Von Goetz's medical condition nor matters affecting members of her family. As to the latter, which is not strictly material to any of the issues raised in this hearing, we are content to give that assurance. So far as her own medical condition is concerned, it will be necessary for us to consider medical evidence, particularly that in the form of a report by Dr Gill.

The real concern expressed by Miss Von Goetz is that any judgment which refers to her medical condition should not be posted on the internet or on the EAT website. We have carefully considered that matter and we take the view that it is not necessary in the public interest for this ruling to be publicised in this way, and accordingly, we shall give a direction that any judgments given by us today will not be posted on the EAT website.

(3) She makes a blanket application for additional time for any appeal or application for permission to appeal or application for a review of any orders or decisions which we make today. We are not prepared to give that blanket permission; any application for additional time will be considered on its merits, as when and if it arises.

(4) She asks that any judgments given by this Tribunal today be transmitted to her electronically. We see no reason why that should not be done, and thus any judgments which we give will be transcribed; they will not be posted on the website, as I have indicated earlier, but they will be sent by e mail to the Appellant and the Respondent as well if they wish it.

(5) She seeks a review of the decision made at the preliminary hearing on 11 September 2002, specifically she wishes to have the opportunity to raise further grounds of appeal which appeared in her original Notice of Appeal, but which apparently were not pursued by Counsel, Mr Donovan, who appeared on her behalf under the ELAAS scheme on that day. We shall not entertain that application for review; it ought to have been made to Mr Justice Maurice Kay's division.

(6) She applied to adduce further medical evidence which was not available before the Employment Tribunal Chairman, Mr Booth, when he struck out her applications and subsequently refused to extend time for a review. We do not consider it necessary for that evidence to be formally admitted for the purpose of deciding the single issue which is presently before us.

(7) She asks, if the appeal is allowed today, whether the EAT will substitute our own judgment as to first, whether she should have been granted an extension of time for applying for a review of the material strike-out decision, and, alternatively, whether we will carry out the review ourselves. That question does not arise at this stage, it must await the determination of the substantive appeal.

(8) She has applied for all her cases to be joined together, including cases which have already been determined by the EAT, Lindsay P presiding. We can see no basis for joinder. Insofar as the cases have already been determined in the EAT, this Tribunal is functus officio. These matters are, we understand, the subject of application for permission to appeal to the Court of Appeal and are therefore no longer within the EAT's jurisdiction. Insofar as cases are still proceeding in the Employment Tribunal, again, unless and until determined by the Employment Tribunal and thence come on appeal to the EAT, this Tribunal is not seized of those matters.

3. Finally, in answer to a question from me as to whether or not Miss Von Goetz was applying for an adjournment of today's hearing because she was not competent to conduct it, she first suggested that an adjournment might be appropriate and later that today could be used for the purpose of a directions hearing.
4. We have taken careful account of the conclusions expressed by Dr Gill in his report received on about 24 July 2003. We quote from two paragraphs:

"36 The present case represented one problem among many affecting her. I do not think that resuming the litigation would be likely to have a major long term effect on the overall scheme of things. Indeed, it could be argued that if the case were finally decided one way or another it would help her, albeit possibly after a period of additional distress, to move on.

37 I do not think it is likely that she herself would be fit and competent to conduct the case in the foreseeable future."

5. It seems to us that two matters arise from that expression of opinion. First, and we respectfully agree with the doctor's opinion, it seems to us that it may be in the Appellant's own interest, medically, to have some determination in this appeal.
6. As to the question of whether she is today fit and competent to conduct her case in relation to the single issue, which was sent for a full hearing by Mr Justice Maurice Kay's division, we have had the advantage of seeing and hearing Miss Von Goetz at length today. We find that her submissions are clear and lucid and demonstrate an enviable grasp of the material in this case.
7. We are quite satisfied that she is today fit and competent to conduct this case. Accordingly, we shall proceed to hear the appeal.