APPEARANCES
| For the Appellant |
MR J G MENDUS-EDWARDS
(of Counsel)
Instructed by:
Dunham Brindley & Linn
Denning House
George Street
Wolverhampton
W Midlands
WV2 4DP |
| |
|
MR RECORDER UNDERHILL QC
- This is the preliminary hearing of an appeal against the decision of a Tribunal sitting in Birmingham. In form, the decision was a decision to adjourn; but in order to understand the background it is necessary to explain a little about the claim.
- By an Originating Application presented to the Tribunal on 3 December 1999 the Appellant complained that she had been unfairly constructively dismissed by her employer in May 1999 and subjected to sex discrimination at various dates during the course of her employment. Both the unfair dismissal and the sex discrimination claims related to the way that her employer had or had not allowed her time off to attend to urgent family responsibilities. The acts of discrimination alleged fell into three episodes:
1) in October/November 1998;
2) in December 1998;
3) between 8 and 13 March 1999;
It followed that both the unfair dismissal claim and the sex discrimination claim were prima facie out of time.
- A preliminary hearing was held on 19 May 2000 to consider whether the claims should nevertheless be permitted to proceed. Remarkably, we do not have a copy of the decision made by the Tribunal on that occasion, but it appears that the Tribunal decided to allow the complaint of sex discrimination only in relation to the third episode. The Appellant was not represented on that occasion.
- The surviving complaints came before the Employment Tribunal on 9 November and the hearing continued into the following day. Mr Mendus-Edwards of Counsel, who appears before us this morning, appeared for the Appellant. He tells us he had been very recently instructed and he did not have a copy of the decision of the first Tribunal on the time point. The decision must of course have been sent to the Appellant shortly after it had been made. Mr Mendus-Edwards tells us that he thinks he must have asked her for a copy, though he cannot specifically recall doing so. In any event if he did so, she did not give it to him.
- At the hearing, Mr Mendus-Edwards argued that the Tribunal should consider not only the third episode, but also the Appellant's complaints as regards the first and second episodes. This was on the ground that the three episodes should be viewed together as an act extending over a period, within the meaning of Section 76(6)(b) of the Sex Discrimination Act 1975, in which case they were to be treated as done only at the end of that period, i.e. in March 1999, and so were no later than the last episode in respect of which the complaint had been permitted to proceed. The Tribunal held that it was precluded from taking that course by the decision of the first Tribunal. It pointed out that the earlier episodes could be relied on as background, shedding light on the employer's grounds in acting as he did in the course of the third episode, but they could not, themselves, form the subject matter of a complaint. That view seems to us almost certainly correct, though in order to give a definitive view one would of course wish to see how the first Tribunal had framed its decision.
- The decision of the first Tribunal was plainly central to the whole debate, but we are told by Mr Mendus-Edwards that the issue was discussed between him and the Tribunal, on both days of the hearing, without either him asking to see a copy of the decision of the first Tribunal or the Tribunal volunteering a copy. It is clear that the Tribunal itself had the decision in the file, as one would expect, because it referred to it in the Reasons which it eventually gave for the adjournment. It would have been the easiest matter in the world for a copy to be made and given to Mr Mendus-Edwards. We frankly find it astonishing that Mr Mendus-Edwards did not seek, and was not given, a copy of the Decision; but there it is.
- On the second day of the hearing, having apparently considered the position overnight, Mr Mendus-Edwards applied for an adjournment in order that an application for a review and/or an appeal could be pursued in respect of the earlier decision of the Tribunal, albeit out of time. It appears from the Tribunal's Reasons that he submitted that the Appellant, not being represented at the earlier hearing, had failed to make her position clear. He submitted that it was unsatisfactory for the Appellant to rely on the March 1999 incidents alone, and that there was a prima facie case for alleging that this was a case of continuing discrimination. The Respondent objected to the adjournment, but the Tribunal decided to grant it, in order to give the Appellant the opportunity to make the application for review and/or appeal out of time, if so advised. In making that application Mr Mendus-Edwards was obviously influenced by the Tribunal's decision that it was precluded by the decision of the earlier Tribunal from entertaining any complaint in relation to the first and second episodes, and by an indication which it is plain that the Tribunal gave that the case as regards the third episode was weak.
- The Appellant did not in the event take either of the courses for the purpose of which the adjournment had been granted; that is to say, there was neither an application for a review of, nor an appeal against, the earlier decision. Such an application could not have been properly considered, let alone mounted, without the Appellant or her representatives having a copy of the decision in question, which it appears that they did not seek, even after the conclusion of the hearing. Instead, the Appellant appealed against the decision of the Tribunal of 10 November 2000. It may on the face of it seem odd that she is appealing against an order for an adjournment that she herself sought, but the substance of her complaint is plainly that the Tribunal should have continued with the hearing on the basis that it could determine her complaints in relation to all three episodes.
- When the matter came before us this morning, we did not have with our papers a copy of the decision of the first Tribunal. Although that is not of course the decision appealed against, it is central to the submissions that were to be made, and we assumed that it was merely an oversight. When, however, we asked Mr Mendus-Edwards for a copy, he told us that he did not have one either: as explained above, he had not had one at the time of the hearing and he had taken no steps to obtain one since. He told us that he has only very recently been instructed for this appeal.
- It is obviously very unsatisfactory that we should have to deal with this appeal without seeing what the first Tribunal decided; but it would be even more unsatisfactory to adjourn it. It is the responsibility of the Appellant to put before us the material which we need in order to entertain the appeal, and if she suffers from our not having that material, that must be her responsibility or that of her advisers. Having said that, it is in fact reasonably apparent what the first Tribunal decided, since we have a summary, though not an entirely clear one, at paragraph 2 of the Tribunal's Reasons for the Decision appealed against; and we doubt whether our decision would or could be any different, even if we had access to the decision of the first Tribunal.
- The Appellant's basic difficulty is that the first Tribunal, in deciding that the claim relating to the first and second episodes must be dismissed, must be taken to have proceeded on the basis that those complaints were indeed out of time and were to be treated as acts occurring on the dates in question. Either the submission that they were to be treated as having continued until March 1999 was never made or the submission was made and was rejected. In either case, the Tribunal on the second occasion was plainly right to hold that the question of the precise dates of those acts could not be revisited. The only way in which the Appellant would be entitled to maintain her complaints in relation to those episodes would be by way of a review or appeal, as indeed the Tribunal correctly held. We are bound to say that we are somewhat surprised that the Tribunal thought it right to allow an adjournment in order to allow such a review or appeal to be pursued; but we are not aware of the full arguments and we would not wish to be critical of that decision. In any event, the case was adjourned and there is nothing that can be done about that now.
- It seems to us that for that reason the Appellant's appeal is bound to fail, and we dismiss it at this stage. It follows that the case will have to go back to the same Tribunal, if it can be assembled, or to a new one if it cannot, to resume or re-start as the case may be, consideration of those claims which were permitted to proceed by the first Tribunal.
- Mr Mendus-Edwards has asked us to give him permission to amend his Notice of Appeal to include an appeal against the decision of the Tribunal on the first hearing. Quite apart from the impossibility of our doing such a thing without even seeing a copy of the decision, the application is in any event misconceived. It is in principle open to him at any time to seek to appeal out of time against that Decision. However, as we indicated to him, it seems to us that the prospects of such an appeal being permitted to proceed, in the events which have happened, are, to put it at its lowest, remote in the extreme.
May I nevertheless ask for a legal aid assessment of this matter? One has done one's best in difficult circumstances, and with the shortage of time, and in particular, in dealing with the events following the first hearing.
Well what is the effect of a legal aid assessment Mr Mendus-Edwards? Does it involve any endorsement by us of the proposition that this was a reasonable appeal to make and was reasonably handled? If it does involve such endorsement, you will not be surprised to hear, in view of what we have said, that it is something we would be reluctant to give. I am frankly not sufficiently familiar with what exactly a legal aid assessment involves.
Well I am told I have to ask for it - and I do so because it would involve this kind of endorsement: it would involve an acceptance that one has done one's best in what are difficult circumstances. I was instructed on the first instance at the last minute, on the hop rather, and it was only in the first few days of this week - I think Monday or Tuesday, that it was confirmed that I would be able to appear today, and that is the way, unfortunately, one does have to conduct cases, so that one does one's best in the way that cannot always meet the high standards rightly mentioned by the Tribunal today.
Well, we felt obliged to be critical of the situation we are in. We do not know the full circumstances about your involvement, Mr Mendus-Edwards, and we would be reluctant to say anything that involved any definitive censure of your conduct, because we do not know enough; but I am just not sure what a legal aid assessment - what does that actually involve us doing?
Usually, in the EAT, if a party is alleviated the normal run of things would be that the Appellant would apply for …..costs from a legal aid fund, but of course it would be for the EAT to decide whether or not such application should be granted.
I think we will arise for a moment. …….
[ON RETURNING]
Mr Mendus-Edwards asked for us for an Order for a legal aid assessment. It will have been plain from our substantive judgment in this case that we believe that the appeal was misconceived; and that the way in which it has been handled, and in particular, the absence of a key document, has been extremely unsatisfactory. We are not in a position to say definitively whether that is the fault of Mr Mendus-Edwards personally; we know nothing about the circumstances in which he was instructed, though he tells us that it was only confirmed (I think that was the way he put it) at the beginning of this week that he would be instructed. We do know that he signed the Notice of Appeal on 27 November 2000, so he clearly had some previous involvement.
We would not be prepared to make any Order that precluded the appropriate authorities from considering whether in the light of those criticisms either Mr Mendus-Edwards' instructing solicitors or he should be paid their full fees in relation to this matter. On the understanding that an Order for a legal aid assessment would not have that effect, that is to say that it would remain open to the authorities to decide what course it was right to take, we are content to make the Order. Mr Mendus-Edwards was not able to tell us whether that would be the precise effect of the Order, and I think that the way it would have to be left is that these observations will be transcribed with the rest of the judgment, and drawn to the attention of the Legal Aid Board.
If they give rise to any difficulty, then the matter will have to be restored to us for clarification, in which case at this point, we would need to know precisely what powers we are acting under and what the effect of the Order sought would be.
We repeat that although we have been very critical of the state in which this matter came before us, it would be unfair of us, on what we know at present, to say for certain that that is the personal fault of Mr Mendus-Edwards, and we should not be taken as saying so. But nor is it a matter, I am afraid, in respect of which on what we know we can say that he bears no responsibility. It is a matter someone else will have to investigate.
That is the best we can do for you Mr Mendus-Edwards.
I appreciate it, thank you very much.
