United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant In Person
For the Respondent	MR J SHALE (of Counsel) Instructed by: Messrs Solicitors in Law Ltd 76 Shepherds Bush road Hammersmith London, W6 7PH

SUMMARY

PRACTICE AND PROCEDURE

Withdrawal

Striking-out/dismissal

This was an appeal against the Order of the Registrar in which the appellant claimed that she should be allowed to make an application out of time to set aside an Order in which her appeal to the EAT had been dismissed on her withdrawal. She alleged that she was suffering at the time from a mental illness and was not in an appropriate state properly to conduct her affairs. The EAT rejected the appeal and held that the medical evidence was far too thin; it also took into account the history of this litigation, and had some regard to the potential merits of the grounds of appeal.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal against the decision of the Registrar who refused to allow the applicant an extension of time in which to seek leave to persuade the EAT to review an earlier order of the Registrar that her appeal should be dismissed on withdrawal.
2. In order to understand the nature of this appeal it is necessary to say just a little about the history of this litigation.
3. The claimant issued proceedings against the respondent in 2003. She alleged unfair dismissal, unlawful deduction of holiday pay, and sex discrimination. Her case on liability was determined on 3 February 2004, following a seven day hearing, with some findings in her favour, although the sex discrimination claim was rejected. There was a finding of unfair dismissal.
4. The case was adjourned for matters relating to compensation to be dealt with. That hearing was conducted over two days in May 2005. A judgment was delivered on 19 September 2005. The Tribunal concluded that the appellant should receive no compensation for unfair dismissal. This was both on a Polkey basis and on the grounds that she had contributed 100 per cent to her own dismissal. The Tribunal also made an award of costs against her.
5. Meanwhile, the claimant had appealed the liability hearing to this Tribunal. She withdrew that appeal, however, before the decision on remedies had been delivered. It is important to note the terms in which the request was made:

"…I have carefully considered the matter and reached the conclusion that given that I have been successful in my unfair dismissal claim, albeit under s.98 of the ERA 1996 instead of s.100 or s.103A which were my main claims under which I believed that unfair dismissal occurred, I do not want my appeal application to in any way jeopardize the award of compensation which is being finalised at the Employment Tribunal because I am currently only receiving a very small amount of incapacity benefit and my husband is unemployed as he had to resign from his job to take care of me because of my psychiatric injuries resulting from my employment matter. It is crucial for us therefore to receive whatever compensation we can receive without delay."

On receipt of this letter by an order dated 5 August 2005 the Registrar granted leave to withdraw and dismissed the appeal.

6. She then appealed the decision on remedies, and that was heard before His Honour Judge Reid QC on 19 May 2006. He delivered judgment on 16 June. There were some criticisms of the Tribunal's remedies conclusion and the matter was remitted for the Tribunal to reconsider that issue in the light of the EAT's decision. That remitted hearing took place in late 2006. In fact, the Tribunal came to the same decision as it had before, save that it reduced by a small amount the costs which had been awarded.
7. The claimant then appealed that third decision of the Tribunal. His Honour Judge Clark rejected the appeal at the sift stage and there was a rule 3(10) hearing before Mr Justice Burton which was heard on the 27 June 2007. He analysed her arguments with conspicuous care and concluded that there was no reasonable prospect of any of the grounds of appeal succeeding. It is, in my judgment, important to note that the claimant herself appeared before Mr Justice Burton. He noted in his decision (para 16) the following:

"The main ground out of the six grounds put forward by the Appellant, ably and fully and, on the basis that she explained she is now fully recovered from any mental problem, with great skill, was what she called the medical evidence point."

8. That point to which he alluded was her contention that she was not well and had a mental problem in the period leading up to and subsequent to her dismissal, and that this should have affected the Tribunal's assessment of both Polkey and her contribution. The Tribunal had concluded that the illness was not a factor which mitigated the claimant's institution or continuation of proceedings. That was a relevant finding with respect to the costs determination they had made against her. Mr Justice Burton concluded that the Tribunal had carefully assessed the evidence and was entitled to reach that conclusion.
9. I note in passing that Mr Justice Burton was asked earlier this year to review that decision. As in this case, he was asked for an extension of time in which to allow the application for review to be considered on medical grounds. He refused to do so and he concluded that the medical evidence then available before him – which is not significantly different to that before me – did not begin to demonstrate that the claimant was unable to manager her affairs and:

"offers no concrete evidence that she was incapable of conducting her affairs at the time of her withdrawal, nor any evidence that her mental state at the present time is any different from that of three years ago."

10. I should also add that the question of whether the claimant was mentally ill, and therefore unable properly to run her case, was also considered by His Honour Judge Reid QC in his decision. He rejected a ground of appeal which asserted that the case should be sent back because the Employment Tribunal should have perceived that the appellant was mentally ill and should of their own motion have stopped the hearing. He noted that the claimant was not a patient. She was entitled to conduct her affairs, and she was described by a Dr Agrawall as having "good insight". Moreover, she had in the course of the hearing sought an adjournment when she felt she needed one. He also noted that she had produced and dealt with a bundle of some 500 pages.
11. More recently, the claimant has successfully persuaded the Employment Tribunal to review its decisions, essentially on the grounds of fresh evidence. A number of earlier applications for review had been rejected. There was some discussion of her state of health at various stages in the process. The Tribunal heard the review over two days and gave a lengthy and reasoned decision in which it rejected her application. Judgment was given on 23 June 2008. The Tribunal also considered the question of illness and said this (para 48):

"The Tribunal should also say that over the past four years the Claimant has persistently sought to establish that she was so ill as to be unable to take proper decisions and deal with her case sufficiently. These assertions have changed over time so that, at the costs hearing, she told the Tribunal when represented by Counsel that she had recovered from whatever illness it was that had affected her at the hearing in October 2004. She has since denied that she had then so recovered. The Tribunal, however, had found at that hearing in 2004 there was no evidence that the Claimant was suffering in such a way as to be unable to deal with her affairs, and that conclusion was reinforced when we subsequently dealt with the remedies claim and again analysed the medical evidence, such as it was, that we had had to that date. We were then satisfied that the Claimant had had a temporary period of illness but had been for five months free of that illness. In addition to advancing different end dates for her illness, she seeks now to extend the illness to the end of 2007 by which time and only then she says she was able to resume her search for evidence of fraud. …"

12. It is against that background that I have to consider this application. The application to the Registrar was based on the ground that at the time she sought to withdraw her application she was subject to a mental health disorder. She was not responsible for her actions. This apparently relates to all the appeals with which she has been involved but this appeal is only concerned with the original liability hearing. She wants to start all the proceedings all over again. She submits that the case has real merits.
13. Her case has been advanced on two bases. The first is that she was not well enough to conduct the hearing first time round and should be allowed another chance. If this application were to succeed then it would allow her to seek to persuade the EAT five years after the event that the Tribunal should hear the case again. Her second, and quite distinct ground, is that the Tribunal made a whole series of errors of law and it would be unjust for her not to be able to advance these now. This latter ground presupposes that the case was properly heard, but that the Tribunal erred in law. These are mutually incompatible claims.
14. Strictly, the merits of the case are only marginal here. The real issue is whether there is proper medical evidence capable of sustaining her claim that she was not capable of conducting the case back in 2004. The real significance of the merits is that if the case is on the face of it very weak, that will mitigate against allowing it to be reopened.
15. I will briefly mention some of her grounds. The claimant says that the Tribunal's decision was ultra vires because they found that there was a dismissal whereas, in fact, there was not. So she submits that many of their findings were ultra vires. She says that the same principle applies to certain other claims eg. breach of contract and post dismissal discrimination.
16. This is quite bizarre because her case was that she had been unfairly dismissed, and she succeeded on that point. This ground of appeal would therefore be establishing that her claim for unfair dismissal ought not to have succeeded. The logic of this is that she now wishes to submit that she still has a training contract with her former employers and therefore has been effectively suspended. She should have been paid from the date of suspension to the present day. It is interesting to note that this does not appear to have been how she advanced the case before the Employment Tribunal, even on review. She says that she was effectively compelled to run claims on the basis that she was dismissed because that is what her employers were submitting. I do not find that persuasive.
17. Then she submits that certain of the respondents whom she sued in a personal capacity were not properly sued since they were not employees. In fairness she did not pursue this as a significant ground, and I am not wholly clear where it gets her even if correct.
18. The third main ground is that the Tribunal reached certain conclusions on a false factual premise. She says certain facts were invented by the Employment Tribunal, that she had been victimised by the respondents and that she had not had a fair hearing. She also alleges that sex discrimination and victimisation discrimination allegations were in fact caused by her disability, which she now says fell under the Disability Discrimination Act. She has never pursued that ground before and it cannot be an error of law for the Tribunal to fail to consider it. I have to say that I do not consider there are real merits on these grounds of appeal. It is trite law that findings of fact are for the Employment Tribunal. They cannot be reopened.
19. Overall I am satisfied that there is on the face of it very little merit in these claims. I note that this conclusion gains some support from the Tribunal's recent careful review.
20. I turn to the principal question, which is whether the decision not to extend time was correct. The basis for the Registrar's decision was that the application for review of the Registrar's order should have been lodged by 26 August 2005 and yet the formal application for an extension of time was dated 19 February 2008. The Registrar rejected her claim on the basis that there was no evidence to support her assertion that she was suffering from psychosis, which is a severe mental disorder. Nor is there concrete evidence of her inability to manage her affairs. There is plenty of authority emphasising the importance of complying with the time limits in the EAT: see e.g.Aziz v Bethnal Green City Challenge [2000] IRLR 111(CA).
21. In my judgment, that conclusion was manifestly correct. The claimant has over the course of the last few years raised the issue of her mental health at times when it suits her, but she told Mr Justice Burton in June 2007 that she had recovered from her problems. She has, as has been pointed out, conducted detailed hearings before the Employment Tribunal and before the Employment Appeal Tribunal over the course of this period. I recognise that mental health problems might in an appropriate case lead people to consider they are in a state to conduct their litigation when they are not. But there is no evidence to say that her state is any different now than it was three years ago; and if her case is that she was not in fact fit then, how can I be sure that she is fit now?.
22. The only fresh evidence relating to the claimant's medical state is a psychiatric report from Dr Martin, which is dated at the end of April. It is striking that he simply relies upon the earlier report from Dr Zakrzewski (which was before Mr Justice Burton on his recent review) and comments made by the claimant herself as to her ability to deal with legal matters. Dr Martin's conclusion was hedged about with qualifications. He properly says he is guarded about writing psychiatric reports without seeing exhaustive source documentation, and he simply identifies that there is "a serious question" that she would not have been able to handle her affairs up until July 2007. I do not think that begins to counter the impression which so many judges have formed, after observing the Appellant at length, that she has been capable of doing just that, albeit somewhat erratically. I should add that she waited more than six months after July 2007 before making her application to extend time. That itself in my judgment constitutes considerable delay.
23. I do not accept that there is medical evidence which explains the delay of three years in this case. The claimant has lodged appeals in that period with respect to the other two decisions of the Employment Tribunal, and that in my judgment demonstrates beyond doubt that she was in a position to have sought to restore her appeal against liability had she wished to do so. She has sought at every turn to re-open the findings of the Tribunal and the EAT. Every decision is subject to review and/or appeal. I do not think there is any justification for extending time in this case. Nor do I think it right that her previous employers, who are a small firm of solicitors, should be subject any longer to this barrage of litigation, taking considerable cost and time.

Disposal.

24. Accordingly, this appeal is dismissed.