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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Walker v. University Hospital Birmingham NHS Trust [2002] UKEAT 108_01_1801 (18 January 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/108_01_1801.html Cite as: [2002] UKEAT 108_01_1801, [2002] UKEAT 108_1_1801

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APPEARANCES

 

For the Appellant	MR MENZIES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER BURKE QC:

1. This the preliminary hearing of an appeal by Mrs Walker, against the decision of the Employment Tribunal sitting at Birmingham, chaired by Mr Butler and promulgated with extended reasons on 24 November 2000, dismissing her claim that she had been constructively unfairly dismissed.
2. Mrs Walker was employed by the employers as an auxiliary nurse for some five years or so before she resigned. She claimed that she had resigned as a result of the employer's treatment of her which, she said, amounted to fundamental breach of contract. The tribunal concluded that the employer's conduct did not amount to a fundamental breach of contract and dismissed the claim on that basis. We do not, for present purposes, need to say any more.
3. Mrs Walker has provided us with the grounds of her appeal set out in three documents; one, a notice of appeal, one an affidavit and one an appendix. Mr Menzies, who has most helpfully appeared for her today under the ELAAS Scheme, has digested and condensed those grounds into 18 grounds, 10 of which are complaints as to the procedure adopted by the tribunal and the remainder of which are complaints as to the tribunal's actual findings. On his advice Mrs Walker has not sought to press before us that latter batch of complaints as to factual findings; and the submissions before us have been confined to the criticisms of the procedure adopted by the tribunal. Let me say at once that we intend to allow this appeal, on the grounds which we shall set out, to go forward to a full hearing. I say that straightaway because there is no reason for Mrs Walker to become anxious while we are going through each of the 10 criticisms of the procedure adopted by the tribunal, which have been put before us.
4. The first criticism which is made is that on 22 April Mrs Walker asked for witness orders and mistakenly orders for witness statements, three of the former and two of the latter, No decision was made on this interlocutory application either at all or until she was told informally, on the morning of the first day of the hearing, a few moments before the hearing proper actually started that they were refused. Mrs Walker complains that she was thus deprived of calling witnesses who would have been important to her in the presentation of her case and that she was not able to adjust her case to the absence of those people; that absence only having being revealed to her at the very last moment.
5. We want to say in respect of all or any of these grounds that we are not suggesting anything one way or the other, firstly as to whether or not the sequence of events which Mr Walker has put before us as accurate and, secondly, as to whether or not these grounds will ultimately succeed; but it does seem to us that this ground presents an arguable ground of appeal, having regard to the fact that Mrs Walker (and that must be borne in mind in relation to each of the criticisms of the procedure adopted by the tribunal which is made) was unrepresented in a case of some little complexity and, as constructive dismissal cases always are, some difficulty. We are told that Mrs Walker raised this issue with the tribunal at the beginning of the case but was simply told that she could not have these witnesses or witness orders without any reasons having been given.
6. The second ground relates to a witness called Mrs Bramble-Wilson. She was one of the witnesses whom Mrs Walker wished to call. She did not in fact call Mrs Bramble-Wilson as part of her case because she was told that Mrs Bramble-Wilson would be called by the employers. She was then informed that the employers were not going to call Mrs Bramble-Wilson. Mrs Bramble-Wilson was nonetheless called after a protest from Mrs Walker. Whether she was called by Mrs Walker or called by the Respondents or called by the tribunal is not at all clear to us and may be a matter which will have to be investigated; but the substance of the complaint, because Mrs Bramble-Wilson was a witness, is that, after Mrs Walker had asked Mrs Bramble-Wilson two questions, Mrs Bramble-Wilson became distressed and the Chairman stopped any further questioning of that witness, although Mrs Walker had other questions, possibly many other questions which she wanted to ask. If that is what happened then it is at least arguable that Mrs Walker was not able to present, through the evidence of Mrs Bramble-Wilson, important parts of her case. Whether she would have been able to do so with any success bearing in mind that she was seeking to call or seeking to ask questions of a witness who was, prima facie, the other side's witness, is something about which we at this stage could not possibly make any comment.
7. Thirdly, and this third ground embraces ground 5 and ground 8 too, this was a case in which there had been no witness statements disclosed in advance. Three witnesses for the employers, Mrs Trowbridge, Mr Jones and Mrs Helliwell came to give evidence, in the case of Mrs Trowbridge on the first of the two days of this hearing and, we think we are right in saying, in the case of the other two, on the second day which was some time after the first day, without any statements being disclosed, although in the case of Mrs Trowbridge there was a one and a half page statement which she had produced at some internal hearing and which Mrs Walker said that she had used the basis for preparation for cross examination.
8. Each of these witnesses then, as is not infrequent in the Employment Tribunal, went to the witness table and read their evidence in chief from lengthy witness statements which had not been seen by Mrs Walker. This is a procedure which professional advocates see happening often in the Employment Tribunal and are able to deal with; but the point is made that it is much less easy for a litigant in person to embark on cross examination of somebody who has just read a lengthy witness statement, which the litigant in person has only just seen. It might be said that it is more difficult for the litigant in person in that situation than it was under the old regime in the courts and tribunals, in which no witness statements were ever produced and witnesses simply gave evidence much more slowly and deliberately by the traditional method of question and answer. Again, we say nothing about the strength of this point, beyond saying that it is arguable that the tribunal, having regard to Mrs Walker's status as a litigant in person, should have ensured that she had had sufficient time to prepare herself for cross examination before she had to take on that task.
9. In the case of the third of these three witnesses, Mrs Helliwell, Mrs Walker was given ten minutes to consider the witness statement and a letter to which we shall refer in a moment. In the case of the other two witnesses Mrs Walker says that she was not given any such opportunity; it may be that she did not ask; but it is arguable in our view that the tribunal, properly looking after the interests of the litigant in person, might have wanted to think about whether it should intervene for itself so as to ensure that fairness was done. We are not in any sense being critical of the tribunal at this stage; we are merely indicating that here is an argument which needs to be developed more fully and on a bilateral basis. That deals with grounds 3, 5 and 8.
10. Ground 4 arises in this way. According to Mrs Walker, having been flummoxed by hearing a 12-page witness statement from Mrs Trowbridge read out, she started to cross examine, asked two faltering questions and was obviously failing. We are told that the tribunal said (and for present purposes we simply accept that this may be what happened; there may be other versions, of course) "You have the opportunity to be better prepared next time, we will adjourn now"; it was only 3 o'clock or so in the afternoon. The argument is that the court adjourned early specifically to give Mrs Walker the opportunity to cross examine Mrs Trowbridge with longer to prepare; no doubt the case was not going to finish that day anyway. A date was obtained. Everybody, including Mrs Trowbridge, said that they would be available. However, it later turned out that Mrs Trowbridge was on holiday, did not turn up and was therefore not available to be further cross examined, when the case was resumed a couple of months afterwards.
11. The criticism that is made is that the tribunal should have intervened and said that this was unacceptable and not allowed the case to go on without, either on that day or some other day (and it would have had to have been some other day), Mrs Walker having an opportunity to present further questions to Mrs Trowbridge. This too seems to us to be arguable. That is ground 4.
12. Ground 5 we dealt with by including it with ground 3. Ground 6 relates to a letter from Mr Taylor, who was the Deputy Chief Executive of the Respondents at the material time, explaining why he did not conduct a hearing which had to be cancelled as a result of his supposed unavailability. The failure to conduct that hearing was said by Mrs Walker to be one of the reasons why she resigned when she did. Mr Taylor was not produced by the Respondents as a witness; but a letter setting out his account of what had happened was given to the Chairman and is referred to, we are told, in the Decision. It seems to us arguable that, before allowing a piece of evidence on what was at least a fact in issue (we will not say it is a vital fact in issue) to be given in the form of a letter, the Chairman ought to have ensured that Mrs Walker did not object and did not want to ask Mr Taylor any questions about it. It may be that there were no questions she could usefully have asked; his account was there; and perhaps there was nothing that could have been done with it; but that is something which ought to be developed hereafter. Again, we think here is an arguable point.
13. We have, I think, dealt with ground 7 and 8 by including them within what we have said on ground 3.
14. Ground 9 is a criticism that Mrs Helliwell's statement; was dated 9 May, having obviously been written after the first day of the hearing and after Mrs Walker's evidence had been heard. There was absolutely no reason why that should not have been done. We can understand why Mrs Walker does not realise that it was appropriate to do that; but it was appropriate; and there is no possible ground for criticism of the tribunal in that respect.
15. Lastly, in ground 10, Mrs Walker complains that there was a line of questioning which she wished to pursue, which went directly to the motivation of the employers in their conduct towards her and that she was not allowed to develop it. We have heard very little about this and it may well be that there is not very much in it; but it seems to us that it is, just, an arguable point; and having regard to the fact that the other matters are going through to a full appeal, we feel it right to let that through too.
16. We have spent some time on this judgment because we have felt it necessary to explain which grounds we are saying can be pursued and which we are not. At the end of all this, Mr Menzies says that if you take all these complaints together there is an impression of bias. There is nothing in the Notice of Appeal at this stage which alleges bias; and we are not now considering whether or not a ground based on bias should or should not be considered by the Appeal Tribunal which ultimately hears this appeal.
17. If an allegation of bias is going to be made it must be made in an amended Notice of Appeal. There is plainly going to have to be a bilateral hearing for directions in this case, particularly because at the moment or at least at the time they were asked about it by the Employment Appeal Tribunal in the run-up to this hearing, the tribunal were saying that all the notes have been lost; and it would seem to us to be imperative that, at that directions hearing, if any application is going to be made to amend the Notice of Appeal to allege bias, that must be dealt with. For the moment we do not propose to give any directions.
18. Subject to what Mr Menzies says, we think that all matters of directions should be dealt with between the parties in this case and, therefore, that the next hearing before the Appeal Tribunal, we having given leave for this appeal to proceed to a full hearing on the grounds which we have identified, should be a bilateral hearing for directions to be arranged between this Appeal Tribunal and the parties. On that occasion too, categorisation should be given to this appeal because categorisation may be determined accordingly to whether there is or is not a bias allegation to be made.
19. It is clearly highly important that the notes in this case should be found. It is partly because of the absence of the notes that we feel there must be a bilateral hearing for directions, because if the notes are not found what actually happened which may well be an issue between the parties, will have to be ascertained by affidavits, from those who were present and that is always less desirable than the notes. So we would put a strong wind behind and urge the tribunal to find the notes. We are not sure we can do any more than that.