Appeal No.	 EAT/1074/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 February 2000

Before
HIS HONOUR JUSTICE COLIN SMITH QC
MR D CHADWICK
MR D A C LAMBERT

MRS R SIVASOTHY	APPELLANT

LONDON BOROUGH OF WALTHAM FOREST	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS STANOJLOVIC
(A FRIEND)	

JUDGE SMITH:-

1.	This is an application by Mrs Sivasothy who was the Applicant before the Employment Tribunal for leave to proceed to a full hearing of an appeal against the decision of an Employment Tribunal held at Stratford on 14th June 1999 of which Extended Reasons were sent to the parties on 6th July 1999 whereby the Employment Tribunal held unanimously that the request by the Applicant Mrs Sivasothy for a review of the decision of an Industrial Tribunal, as it then was, sent to the parties on 17th October 1995, should be refused.

2.	As a matter of record, we should state that after considering the Applicant’s representations in writing by her letter dated 7th July 1999 and by his decision dated 12th July 1999, the Chairman refused the Applicant’s request for a review of the decision of the 14th June 1999, as having no reasonable prospect of success.   

3.	We have had the benefit this morning of hearing a very well made submission by Miss Stanojlovic, who is a friend of the Applicant and who is a qualified barrister, and we are very grateful to her for her submission. We have also carefully considered the documentation, some of which, it must be said, is expressed in very emphatic terms which Mrs Sivasothy has placed in front of us, all of which we have considered. We have reminded ourselves that the Applicant need only show an arguable ground of appeal to be allowed to proceed to a full hearing of her appeal.   

4.	Looked at from the point of view of the papers, as distinct from the very helpful submissions we have heard orally today, it might have appeared that there was an assertion by way of a ground of appeal that in refusing to review the 1995 decision, the Employment Tribunal had in some way misconstrued and misapplied its powers to order a review under rule 11 and in some way reached a perverse decision in that regard contrary to natural justice and the equity of the case and looking at the papers it is right to say that there are rather strong criticisms there directed against the Chairman of the Employment Tribunal.  

5.	We will deal with those matters in our judgment but we also of course take into account the way the matter has been put orally before us today which is along the lines that the Employment Tribunal should have given very much more weight, I think is the way it was put, to the severe disadvantage occasioned to Mrs Sivasothy by the fact that her case on the merits will never have been heard as a result of the decision to strike it out.  Bearing in mind, as it is submitted to us, that she had a successful career as a teacher and the case she wished to bring concerned her dismissal from that position in circumstances where she believes and will always very strongly believe that she was not in fact made redundant, as the employers claim, but that she was unfairly dismissed.  It is pointed out to us that dismissal from employment is a very serious event in somebody’s life and that it has caused very great upset to her and taking that into account and the fact that as is submitted she was ill for many years, it is submitted, that the Employment Tribunal should have concluded that the interests of justice required that she should be allowed to ventilate her complaint and the decision is wrong for those reasons.  That is a summary of the way the matter has been put to us on the Applicant’s behalf.

6.	To put all those matters into context in order to make a decision in relation to them it is necessary to set out the factual context giving rise to the hearing on 14th June 1999 and, of course, the findings made at the hearing by the Employment Tribunal.  As appears from the original application to the Industrial Tribunal presented as long ago as the 30th March 1993, the Applicant had been employed as a maths teacher by the London Borough of Waltham Forest at Connaught School for Girls from January 1990 until her dismissal on 31st December 1992, when she was dismissed allegedly on the grounds of redundancy.  She brought proceedings alleging unfair dismissal and racial discrimination against the governors and the local authority.  

7.	As we have already said, there can be no doubt that the Applicant harbours a great sense of injustice and resentment indeed against the head of the school and the head of the maths department amongst others for the way in which she was treated, on her account of the matter, in 1992, in the circumstances leading up to her dismissal at the end of 1992. 

8.	As appears, however, from the decision of the Chairman sitting at Stratford in the Industrial Tribunal, as it then was, on 17th October 1995, on that date the Chairman had to consider whether to exercise his powers under rule 13(2)(f) and rule 13(3) of the 1993 Regulations to strike out the Applicant’s complaint for excessive delay and want of prosecution.  It is clear in our judgment that the procedural requirements required by the rules had been properly complied with as appears from the Chairman’s decision at that time.  The Chairman found as a fact on that occasion that two years after the Respondents had entered an appearance, a message had been received at the Tribunal office from a lady describing herself as the Applicant’s daughter, that the Applicant was ill and wished to withdraw her claim.  She was asked to send confirmation in writing which she did not do according to the findings of the Chairman.  Thereafter, according to the findings of the Chairman, further letters were sent by the Tribunal to the Applicant on 16th May 1995, the 6th June 1995 and 15th June 1995, to none of which, according to the findings of the Chairman, was there any response.

9.	In those circumstances, the Chairman reached the conclusion that the Originating Application of March 1993 should be struck out for excessive delay and he expressed his decision as follows:-

“.5.	Accordingly I am satisfied that the refusal of the Applicant to respond is wilful.  

We interpose to say by that he meant intentional, and to  continue the quotation of paragraph 5:-
And together with the message from her daughter and to which I have referred I am entirely satisfied it appropriate that the Originating Application should now be struck out for want of prosecution under the powers conferred upon me for that purpose by rule 13(2)(f) and rule 13(3) of the 1993 regulations to which I have already referred. Pursuant to the requirement prescribed by rule 13(3) the Applicant was given an opportunity on 15th September last to shows cause why her application should not be struck out and as I have indicated she has never responded to that later.  Paragraph 6 Accordingly, I strike out the Originating Application herein for want of prosecution thereof.”

10.	We have no doubt that that was a proper decision reached in conformity with the exercise by the Chairman of the judicial discretion conferred upon him to treat the delay as excessive and intentional thus entitling him to exercise his powers to strike out the Originating Application.    We are certain that the approach of the Employment Tribunal on that occasion was consistent with the cases on this topic. 

11.	Three and a half years later, the Applicant sought to resurrect the claim by bringing a further Originating Application presented on 13th April 1999.  It was on exactly the same grounds as that which had been previously struck out.  Some six and a quarter years had by then elapsed since the dismissal at the end of 1992 about which the Applicant sought to complain and the Employment Tribunal at the hearing on the 14th June, which is the subject of the present application for leave to appeal, estimated in paragraph 5 of the decision under appeal, that about eight years would have elapsed before the substantive matter could be fixed for hearing.

12.	Upon receipt of the Applicant’s renewed complaint, the Chairman, in our judgment rightly, directed that a preliminary hearing should be held to consider whether the renewed complaint should be allowed to proceed after such a long delay and it was in those circumstances that the full Employment Tribunal came to consider the matter on 14th June 1999.  As appears from paragraph 4 of the decision, the Employment Tribunal correctly held that they only had jurisdiction to consider the Applicant’s complaints if the order made striking out the earlier proceedings, to which we have already referred in this judgment, was set aside and revoked.   Accordingly, they treated the hearing on 14th June 1999 as an application by the Applicant to review the order made by the Industrial Tribunal in October 1995.  In our judgment in so characterising the decision that they had to make and defining the issues which they had to decide, the Employment Tribunal acted correctly and in accordance with the relevant legal provisions.

13.	It was, of course, as is apparent from the decision of the Employment Tribunal, the Respondents case, that is to say the case for the local authority, the London Borough of Waltham Forest, and of the school, no doubt, that the complaint was hopelessly out of time and that the Application for Review should be rejected on that basis and because of prejudice suffered by the Respondents arising from the very long delay.

14.	The Employment Tribunal recorded the history of the matter in paragraph 2 of their decision and carefully evaluated the evidence given by the Applicant before them at paragraph 3 of their decision.  With regard to the evidence by the Applicant at that time before the Tribunal to the effect that she was unable to pursue her complaints back in 1995 and earlier, of course, due to illness, the Employment Tribunal made the following findings of fact:-

“She suggests that it is only now that she is fit enough to pursue her complaints and she asks that she be permitted to do so.  Mrs Sivasothy has produced a note from her GP prepared for other purposes in September 1996.  That records that Mrs Sivasothy was suffering from depression with anxiety, from diabetes and from osteo-arthritis in her knees.  Her condition was then described as “severe depression”, unable to sleep, persistent headache and inability to concentrate.”  Mrs Sivasothy accepted that she did, in May 1998, write to the respondent concerning premature retirement.   She says that took considerable effort and that she did not then have the mental energy necessary to pursue her complaints.”

15.	It is apparent that the Employment Tribunal had in mind and carefully considered the grounds that were being put forward by Mrs Sivasothy before them as to why she had not been able to pursue the complaint that she had originally made.  The Employment Tribunal then, in paragraphs 5 and 6 of their decision, expressed their reasons for concluding that the Application for a review should be refused and it is necessary for those two paragraphs to be set out.  They are in these terms:-

“5. The application for review is refused because of the very long delay in making this application and the even longer delay since the dismissal of which the complaint is made.  Before a hearing could be fixed, some eight years will have elapsed since the events giving rise to the complaints.  That is so long a period of time as to constitute a very real prejudice to the respondent and to render a fair hearing of those matters very difficult indeed if not impossible.  Witnesses have moved on and recollections will have faded.

6. The only corroboration offered by Mrs Sivasothy is the note from her doctor prepared for other purposes in 1996.  That, in any event, stops short of asserting that Mrs Sivasothy was unable to attend to matters.   There appears to be have been nothing to have prevented an approach to the Tribunal seeking a stay of the proceedings so as to give the applicant a chance to recover.  The respondent would have been put on notice that the issues would come on for hearing and steps could have been taken to preserve evidence.  Balancing the interests of the applicant in having her complaints heard with the prejudice to be suffered to the respondent, that balance requires that the application for a review be refused.”

16.	So that was the reasoning which lead the Employment Tribunal to arrive at the conclusion they did that in the interests of justice the application for review should be refused.   

17.	Turning to consider the grounds of appeal that are sought to be made to us in order that we can decide whether the matter should proceed to a full hearing, in our judgment the Employment Tribunal exercised their powers correctly in deciding whether or not to set aside the order made in October 1995. It is plain in our judgment that, in deciding whether to review an earlier decision on an application for a review under rule 11,  a tribunal appointed under the authority of a regional chairman, as this Tribunal was, has a very wide discretion with the exercise of which, provided it is exercised judicially and fairly, and provided the Employment Tribunal have taken into account relevant matters and not considered irrelevant matters, the Employment Appeal Tribunal cannot interfere.

18.	In our judgment, on the correct construction of its powers under rule 11, the Employment Tribunal were entitled to consider all the relevant circumstances in deciding whether or not to grant the review.  In particular, it is erroneous to argue that in any way the Applicant was automatically entitled to a review if she established that she did not receive the notice requiring her to show cause why her first complaint should not be struck out.  There is nothing to suggest that the letters and notice sent to her in 1995 were sent to other than the correct address for service in accordance with the requirements and the rules relating to service.   It is also clear that the Applicant must have received a copy of the decision made by the Industrial Tribunal in October 1995 and there was no appeal against that decision at the time.  In our judgment the Employment Tribunal were entitled and indeed bound to consider all the circumstances in June 1999 in deciding whether it was in the interest of justice that a review should be granted.  

19.	In our judgment, and despite the submissions that have been made to us very ably this morning, it is clear that the Employment Tribunal properly took into account, in the light of the evidence presented to them, the circumstances relating to the Applicant’s illness and the medical evidence, namely the General Practitioner’s notes of 1996, in support of a contention that she had to discontinue the earlier proceedings due to illness.  It is also clear, in our judgment, particularly from the last sentence of the decision in paragraph 6 that the Employment Tribunal did take into account the interest of the Applicant in having her complaints heard and that they put that into the overall balance which they had to strike in deciding in the interests of justice whether the application for a review should be refused or allowed.  

20.	We conclude that the Employment Tribunal were entitled to make the findings they did in relation to the matter in paragraphs 3, 5 and 6 of their decision.  Contrary to the submissions made to us on behalf of the Applicant, we are satisfied that although of course her illness and the extent of it and indeed the fact that she is unable to have her complaints heard, are relevant factors, they are only one or two of a number of factors which the Employment Tribunal had to balance before they made the decision they did.  Other equally important factors were the inordinately long delay and equally importantly the consequent prejudice to the Respondents which the Employment Tribunal were entitled in our judgment to hold existed.  

21.	In our judgment, a matter such as this complaint involving an allegation of unfair dismissal and indeed racial discrimination way back in the late part of 1992, would have turned upon the oral evidence and the recollections of witnesses who would have had to try to deal with events that were very old indeed where memories would undoubtedly have faded.  The Employment Tribunal were therefore entitled to conclude that the delay was such as would render a fair hearing difficult if not impossible and that the delay itself constituted a very real prejudice, to use the words of the Employment Tribunal, to the Respondent.  

22.	In our judgment, in so deciding the Employment Tribunal were following the principles laid down by the Court of Appeal in Evans & Other v Commissioner of Police of the Metropolis [1993] ICR 151, particularly the judgment of Lord Hoffman at page 159.  They were also entitled to take into account their finding of fact that the Applicant could have sought a stay of the earlier proceedings but had failed to do so.  Thus, in our judgment, looked at in the round we find that we cannot interfere, and there is no arguable ground for interfering, with the exercise by the Employment Tribunal of their discretion to refuse a review, because it reveals no error of law and no improper exercise of discretion and so we have to dismiss those potential grounds of appeal.

23.	We say a very brief word in regard to the allegation that was made on the papers to the effect that the Chairman misconducted himself in some way with respect to the Applicant.  We are unanimously of the view that this is an allegation which is in fact not justified.  The Chairman had a duty to point out to the Applicant that it appeared to him that her application was very out of time.  The Chairman had good reason for not being able to hear the case before the Tribunal until 2 pm.  There were other matters put forward on the papers relating to the Chairman’s conduct which we do not feel it necessary to deal with in detail in this judgment save to say that they have no merit.  We simply say that there is not a shred of evidence to support those allegations of misconduct and for all those reasons in this unfortunate case, where we have some sympathy for the Applicant, we find that we must dismiss this Application.