Appeal No. EAT/0108/01 RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 November 2002

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MR G H WRIGHT MBE

MRS C C WALKER	APPELLANT

UNIVERSITY HOSPITAL BIRMINGHAM NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MAHON
(Representative)	
For the Respondent	MR CHRISTOPHER WALKER
(of Counsel)
Instructed by:
Messrs Bevan Ashford Solicitors
35 Colston Avenue
Bristol BS1 4TT	

HIS HONOUR JUDGE PETER CLARK

1	The Appellant, Mrs Walker, was employed as an auxiliary nurse by the Respondent NHS Trust at their Queen Elizabeth Hospital Edgbaston from November 1994 until her resignation effective on 23 September 1999.

2	By an Originating Application presented to the Birmingham Employment Tribunal on 19 October 1999 she complained of constructive dismissal, such dismissal being unfair.

3	Dismissal was denied by the Respondent and that issue came before an Employment Tribunal chaired by Mr M G Butler, sitting on 9 May and 1 August 2000.  By a decision with Extended Reasons promulgated on 24 November 2000 that Employment Tribunal found that the Applicant had not been constructively dismissed.  Her complaint failed.  Against that decision she appealed by a Notice dated 4 January 2001.

4	Before the Employment Tribunal the Applicant represented herself, with assistance from her partner, Mr George Mahon.  The Respondent was represented by Mr Christopher Walker of Counsel, instructed by Bevan Ashford Solicitors.

5	The appeal came on for ex parte Preliminary Hearing before a division presided over by Mr Recorder Jeffrey Burke QC, sitting on 18 January 2002. On that occasion the Applicant was represented by Mr Menzies of Counsel under the ELAAS pro bono scheme.

6	Mr Menzies formulated the Applicant’s grounds of appeal, contained in the Notice of Appeal, her affidavit sworn in these appeal proceedings on 15 February 2001 and an appendix, into 18 grounds, 10 of which complained of procedural irregularities before the Tribunal and the remainder of which attacked the Tribunal’s factual findings.  Those latter complaints were not pursued, our jurisdiction being limited to correcting errors of law; instead, the debate at the Preliminary Hearing focused on the alleged procedural irregularities.  Having heard argument the Appeal Tribunal permitted the majority of the procedural complaints to proceed to a full hearing.  At that stage the Employment Appeal Tribunal had seen and heard the Applicant’s case only.  There was no affidavit evidence in reply from the Respondent.  Moreover, the Tribunal had somehow managed to lose the file, including the Chairman’s notes of evidence, so that the members of the Tribunal, asked to comment on the Applicant’s affidavit in advance of the Preliminary Hearing, were only able to provide very limited assistance.

7	No directions were then given for the future conduct of the appeal; instead, a bilateral hearing for directions was ordered.

8	The directions hearing took place before me on 16 July 2002.  It is fair to say that the parties, particularly Mrs Walker, who was again acting in person, were not entirely clear what matters would be considered at that directions hearing.  In the event I ordered the Respondent to lodge an affidavit in response to that of the Applicant and gave the parties leave to lodge any further submissions, reserving to myself further directions on paper after those steps had been taken.

9	The Respondent lodged an affidavit sworn on 16 August 2002 by Raj Bahadar Singh Basi, describing himself as a trainee solicitor with Bevan Ashford between 7 September 1998 and 25 August 2000.  He said that he had then left the firm for other employment, returning to Bevan Ashford as an assistant solicitor on 5 August 2002.

10	Mr Basi stated that he attended both hearings in this case before the Birmingham Employment Tribunal with Mr Walker of Counsel.  He exhibited what purported to be copies of his hand-written notes of the proceedings before the Employment Tribunal.  Those notes have been typed up for convenience.

11	On 19 August, the Appellant having read Mr Basi’s affidavit, a letter from her was faxed to the Employment Appeal Tribunal by Mr Mahon.  In that letter she contended that Mr Basi had not attended the Tribunal hearings.

12	The papers were put before me and on 8 October I directed that the Applicant and Mr Basi attend the full Appeal Hearing for cross-examination following Lindsay P’s guidance in Facey v Midas [2000] IRLR 82, paragraph 39, and gave a direction for the exchange and lodging of Skeleton Arguments.

13	It is in these circumstances that this appeal now comes before this division for final determination.

14	Turning next to the Employment Tribunal’s substantive decision, oral evidence was heard from the Applicant and, for the Respondent, from Mrs Bramble-Wilson, Human Resources Manager, Mrs Trowbridge, Deputy Director/Manager, Mr Jones, the Applicant’s line manager and Ms Helliwell, Acting General Manager, Facilities.  The Tribunal noted a degree of conflict in the evidence and preferred that given by the Respondent’s witnesses to that of the Appellant for the reasons which they gave at paragraph 14 of their Extended Reasons.

15	The Tribunal identified three strands to the Applicant’s case on constructive dismissal:
(i)	The Respondent’s staff had turned against her;
(ii)	She had received no support regarding an incident with a Mr Ian Bradburn, a charge nurse;
(iii)	That she had suffered depression as a result of her ongoing grievance against the Respondent’s senior management.

16	In short, the Employment Tribunal concluded that the Applicant had not made out a fundamental breach of her contract of employment by the Respondent.  Accordingly her complaint was dismissed.

17	Since no substantive misdirection in law is advanced we can only set aside the Employment Tribunal’s decision if, on appeal, we are satisfied that procedural irregularities took place such that the Applicant did not receive a fair hearing below.  In order to examine that contention it is first necessary for us to find the facts as to what occurred during the 2-day hearing below.  As to that there is a conflict on the face of the affidavit evidence of the Applicant and Mr Basi, starting with the fundamental contention by the Applicant that Mr Basi did not in fact attend either day of the hearing.  Mrs Walker has firmly maintained that position in cross-examination.  Mr Basi was not present on either day of hearing before the Employment Tribunal.  It follows from that evidence that the manuscript notes, running to some 43 pages, are a fabrication.  Apart from Mr Basi lying to this court as to his attendance and note-taking Mr Walker, Counsel who appeared below, has advanced a wholly false case on appeal.  We cannot accept that this is so.  We find that Mr Basi did attend the Employment Tribunal hearing and took the notes which he has produced contemporaneously.  In particular, we accept his evidence to us that he did not later add a line and a half to the notes (EAT bundle page 52) relating to Mr Walker’s indication at the outset of day 1 of the Employment Tribunal hearing that he may not be calling Mrs Bramble-Wilson, but if not, would inform the Applicant of that fact at the end of her evidence.  He did so, and the Applicant called Mrs Bramble-Wilson as her witness, having been quite properly warned by the Chairman that she could not then cross-examine that witness.  We find that Mr Basi’s notes are accurate and reasonably full.

18	Having so found, the grounds on which this appeal has been permitted to proceed to a full hearing must now be seen in the light of the true facts, as opposed to the distorted view of events advanced on behalf of the Applicant at the Preliminary Hearing, that is, by Counsel then appearing on her instructions.  We take each remaining ground in turn.  There are 6 points.

(1)	On 22 April 2000 Mrs Walker applied in writing to the Tribunal for witness orders in respect of 5 prospective named witnesses.  It was her case at the Employment Appeal Tribunal Preliminary Hearing that she was informed shortly before entering the Tribunal room on the first day of hearing, by a clerk she told us in evidence, that the applications were refused.  In fact, as appears from Mr Basi’s notes, the Chairman conducted a perfectly proper enquiry at the outset of the first day, was not satisfied that the witnesses could give relevant evidence necessary for the fair disposal of the proceedings and then the Tribunal dismissed the application in open court.

(2)	It was suggested that the Applicant was unable to ask more than 2 questions of Mrs Bramble-Wilson before she became upset and the Chairman stopped the questioning.  That is not, we find, what happened.  As appears from Mr Basi’s notes (EAT page 104) the Applicant asked a number of questions and ended by saying “nothing further”.  She was not prevented from putting proper questions to that witnesses.

(3)	It was suggested at the Preliminary Hearing that the Applicant, on the first day, and Mr Mahon, who represented her on the second day before the Tribunal, did not have sufficient time to prepare for cross-examination of witnesses called on behalf of the Respondent, who read out their witness statements in the witness box.  In particular, Mrs Trowbridge, Mr Jones and Ms Helliwell.  We observe that there was no order for pre-trial exchange of witness statements.  The procedure adopted is commonplace.  In the case of Ms Helliwell Mr Mahon sought and obtained a 15 minute adjournment to consider his position.

(4)	It was suggested that the Tribunal adjourned the first day hearing early to allow Mrs Walker time to prepare further cross-examination of Mrs Trowbridge, the last witness called on that day by the Respondent, after she (the Appellant) had dried up after asking two faltering questions.  Again the notes do not bear out that account.  The Applicant’s cross-examination of that witness occupies three and a half closely typed pages of transcript (EAT pages 105-108).  The questioning appeared to be at an end.  Mrs Trowbridge did not attend the second day on 1 August having arranged a pre-booked holiday.  The Tribunal was perfectly entitled, in our judgment, to rule that she should not be recalled for further questioning.

(5)	A third stage grievance hearing was arranged before Mr Taylor, then Deputy Chief Executive, on 10 August 1999, the day before the Applicant tendered her resignation on notice.  The meeting was cancelled and before it could be re-scheduled the Applicant had resigned.  Mr Taylor did not attend the Employment Tribunal hearing.  Instead, a short statement from him in writing dated 20 March 2000 was admitted by the Employment Tribunal, the Chairman observing at the time that it was his practice not to attach much weight to such statements.  Looking at the Tribunal’s reasons this is borne out.  His evidence was of peripheral significance, it being common ground that the meeting was cancelled on 10 August and the Applicant resigned the following day.

(6)	It was submitted at the Preliminary Hearing that the Applicant had not been permitted to advance her case that she was victimised by senior management. We reject that contention.  All four members of management referred to by the Applicant in her Originating Application as parties to a dirty tricks campaign gave evidence before the Tribunal.  The Applicant, and later Mr Mahon, were not prevented from advancing that case through questioning those witnesses.  The Chairman’s interventions, we see from Mr Basi’s notes, were limited to moving matters along when points were being needlessly repeated.

19	In short, upon analysis, we accept Mr Walker’s submission that there is absolutely nothing in this appeal; procedural irregularities have not been made out.  Accordingly, it must be dismissed.