Appeal No. EAT/0561/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 July 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
(AS IN CHAMBERS)

MR H MOSS	APPELLANT

SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT	RESPONDENT

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF APPELLANT	
For the Respondent	MR R POWELL
(Solicitor)
Instructed by
Messrs DLA
Victoria Square House
Victoria Square
Birmingham
NB2 4DL	

MR JUSTICE LINDSAY (PRESIDENT)

1.	This is a hearing for directions only in the appeal of Mr Moss in Moss v The Secretary of State for Education and Employment.  The matter was listed to come on at 10.30.  It is now twenty to one.  Nothing has been heard from Mr Moss and such contact as has been attempted has led nowhere and no reply has been received from such numbers as we have for him.  However, Mr Powell has appeared on behalf of DLA acting for the Secretary of State for Education and Employment.

2.	The recent history of the matter is this, that on 21 March 2000 there was a hearing at the Employment Tribunal.  On 26 April their decision was sent to the parties.  It was the decision of the Tribunal at London North under the chairmanship of Mr C A Carstairs.  Mr Moss had been in person and the Secretary of State had been represented by Miss Fitzsimmons, a solicitor.  The unanimous decision of the Tribunal was that the Respondent did not discriminate against the Applicant contrary to the Disability Discrimination Act 1995.

3.	On 3 May 2000 Mr Moss lodged a Notice of Appeal against that decision.  In the ordinary way a Preliminary Hearing was arranged and on 8 November 2000 the matter came before Charles J sitting with Mr Crosby and Lord Davies of Coity.  They made an Order as follows:

“THE TRIBUNAL ORDERS that the Appeal be dismissed subject to liberty to the Appellant to apply to restore this appeal by way of preliminary hearing within 10 days of the date the transcript of the Judgment is sent to him in accordance with the judgment of the Employment Appeal Tribunal 

4.	The judgment given by Charles J says this:

“Mr Moss has not attended before this Tribunal today.  Attempts have been made to contact him during the day whilst we were dealing with another appeal.  It is now five past four and I am delivering this judgment in the absence of the two Members but I have agreed it with them before they left.

We are aware that Mr Moss was intending to appear today because he made enquiries as to whether it would be possible for him to park his bicycle at or near these premises.  As I will indicate at the end of this judgment, we have not identified any point of law that is reasonably arguable and we dismiss this Appeal subject to a provision which will give Mr Moss leave to apply to this Tribunal within ten days of the date of posting of a transcript of this judgment to him for a direction that there should be a further preliminary hearing.  If he does take up that opportunity that application will be listed before a full Tribunal on the basis that if they decide (next my line in my copy is illegible but going on)  If he makes that application it will therefore be incumbent upon Mr Moss, amongst other things, to explain why he did not attend today.”

5.	The transcript was sent to Mr Moss in ordinary course and on 13 November 2000 he wrote to the Employment Appeal Tribunal making a number of points.  He said:

“The severe ordeal of travelling to and from your EAT and being required to hang around possibly all day was too terrifying on 8/11/00.”

A little later he says:

“Therefore I request that you make such an adjustment in this case, given my current circumstances, and adjourn the case for SIX MONTHS to give me time to fully recover from the hardship, distress and mental pain caused to me by the DSS over this incident.”

A little later he says:

“Accordingly …..  grant me this request on medical grounds for a 6 month adjournment.  I can provide a GP’s letter if required.

I apologise for not having approached for an adjournment prior to 8/11/00 but again, this was due to health difficulties, and lack of  confidence.”

And then he adds:

“*Though no lack of confidence of winning this appeal if well enough to attend, I hasten to add.”

6.	The Registrar acceded to that request and by a letter of 21 November 2000 she wrote:

“The Registrar directs the appeal will be restored to the list in accordance with the Order of the Employment Appeal Tribunal dated 8 November 2000 and will be set down for hearing in June/July 2001.”

All that, contrary to what I earlier indicated, may well have been before the transcript was sent to the parties.  It looks as if transcript was not sent out until 19 December but that last letter from the Employment Appeal Tribunal does seem to contemplate that the restored hearing would be a restored preliminary hearing.

7.	However, as I mentioned, this matter has come in front of me alone in Chambers and marked ‘Meeting for Directions’.  I cannot, as it seems to me, go beyond giving directions, notwithstanding that Mr Powell would not unnaturally wish that I could deal with the adjourned preliminary hearing in full today.

8.	Why it was listed only for directions I have not been able to fathom.  However, taking advantage of the matter as being hearing for directions, I have raised a number of directions with Mr Powell which he does not oppose and the directions are these; that, first of all, the matter is to be listed to be heard as soon as practicable before a Tribunal of three and if at all possible on 10 September 2001, a date on which Mr Powell is in any event attending before the Employment Appeal Tribunal.  As he has been brought here rather fruitlessly today it seems the least we can do is to accommodate him in that respect if it is at all possible.

9.	That is one direction therefore.  Secondly, if any adjournment of the preliminary hearing is to be sought on medical grounds by Mr Moss then independent expert medical evidence will have to be adduced in written form and sent to the Employment Appeal Tribunal and to the Secretary of State’s side; leaving aside any particular emergency applications, that medical evidence is to be given not less than 5 days before the hearing.  Moreover, if, emergencies apart, Mr Moss has any ground other than the medical ground for seeking an adjournment of the preliminary hearing that, too, must be put in evidence in written form and sent to the Employment Appeal Tribunal and to the other side not less than 5 days before the date fixed for the hearing.

10.	It will be remembered that part of the Order made on 8 November was that Mr Moss was to explain his absence on that day.  That too, should be given by way of a written witness statement or affidavit or sworn statement on Mr Moss’ part and if that is to rely at all upon any medical ground for his not attending on 8 November then he is to ask his General Practitioner or other Medical Adviser to give an indication whether Mr Moss was able to cope with a short Preliminary Hearing of say an hour or two hours duration on or about 8 November 2000 and that if it is intended that Mr Moss should rely on medical grounds for not attending on 8 November that indication from his medical adviser should be supplied to the Secretary of State for Education and to the Employment Appeal Tribunal not more than 14 days after the sending out to Mr Moss of a transcript of today’s judgment.

11.	Mr Moss will need to concentrate at the Preliminary Hearing upon whether he can establish some arguable error of law in the Employment Tribunal’s decision that was sent to the parties on 26 April 2000.  It will be remembered that the Employment Appeal Tribunal under Charles J on 8 November had been unable to find any such ground.  Unless Mr Moss can sensibly urge that there was some arguable error of law in the Employment Tribunal’s decision on 26 April then the adjourned hearing will inevitably lead to his appeal being dismissed.  And therefore he is to concentrate on that issue above all.  That is not a direction.  It is just, so to speak, advice to Mr Moss, but, as to directions, I give only those that I have already mentioned and the matter therefore will come on for a restored preliminary hearing either on the date which Mr Powell has asked for or some other date as early as practicable thereafter.