Appeal No. EAT/869/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 May 2002

Before
HIS HONOUR JUDGE PETER CLARK
MRS M T PROSSER
MR J R RIVERS CBE

MRS A GARDNER	APPELLANT

CANTERBURY COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or 
on behalf of the Appellant

JUDGE PETER CLARK

1	This restored preliminary hearing comes before us in the following circumstances. 

2	The Appellant, Mrs Gardner taught Spanish at the Respondent College under a series of  fixed term contracts between 1993 and 2000.  As is not uncommon in Further Education the Appellant, as a part-time lecturer, received a contract each academic year running from the beginning of the course until the end of the academic year.  Her final contract ran from 27 September 1999 until 13 July 2000.  

3	On 4 December 2000 she presented a complaint of unfair dismissal and failure to give written reasons for dismissal to the Ashford Employment Tribunal.  In her Particulars of Complaint she said that she had been interviewed in September 2000 but had not been offered a contract for the coming academic year.  

4	By their Notice of Appearance the Respondent denied that they had, in dismissing the Appellant, treated her unfairly.  But they also took two preliminary points going to the Tribunal’s jurisdiction.  The first was that the claims were time-barred.  The second was that she had not completed one year’s continuous employment to found those complaints.

5	The case was listed for a hearing of both preliminary issues before a full Tribunal chaired by Mr D E de Saxe sitting on 21 March 2001.  By a Decision with Extended Reasons promulgated on 2 April 2001 the Tribunal found that the claim was out of time and were not satisfied that it was not reasonably practicable for the Appellant to present her claim within the ordinary time limit of three months.  In these circumstances they found it unnecessary to go on to consider the continuity of employment question.  

6	Against that Decision the Appellant appealed by a Notice dated 9 May 2001.  The case was listed for preliminary hearing before a division presided over by Lindsay P sitting on 17 December 2001.  On that occasion, having previously represented herself, the Appellant was represented by Counsel under the ELAAS pro bono scheme.  

7	In a judgment delivered on that day the President identified two points advanced by Counsel which required further investigation.  They were first that the Appellant believed that the three month time limit began to run from her receipt of a letter from the College dated 6 September 2000, following an interview the previous day, informing her that she would not receive a contract for the academic year 2000/2001.  Secondly, that the Appellant asked for an adjournment in order to prove, through medical evidence which she had not brought to the Tribunal hearing, that it was not reasonably practicable for her to present her complaints within time.

8	In these circumstances the preliminary hearing was adjourned so that the Appellant could put affidavit evidence before the EAT dealing with four points.  They were:
(1)  the advice which the Appellant received between July and 4 September 2000 in relation to the launch of Tribunal proceedings.
(2)  Evidence as to why she believed that her contract of employment subsisted at any time after July 2000.  
(3)  Her medical condition between July and 4 December 2000 and the degree of impairment to her ability to present a complaint within time. 
(4)  The terms, if any, on which she sought an adjournment of the Tribunal proceedings on 21 March 2001.  If so what was the Tribunal’s response?

9	In her affidavit sworn on 22 January 2002, the Appellant:

(1)  said that she had received advice from her trade union in connection with an earlier complaint made to the Tribunal in December 1999.  That claim was later withdrawn.  She received no advice as to time limits.  She did not say what, if any advice she received between July and 4 September 2000.  She telephoned the union representative in mid-November 2000  

(2)  accepted that her last contract stated that her employment would end on 13 July 2000

(3)   exhibited:
(i)  a letter from her General Practitioner, Dr Puckett, dated 22 January 2002 which stated that in November 2000 he examined the Appellant and she was suffering from severe depression.  He expresses the opinion that she was not then capable of writing statements, although in her affidavit the Appellant said that in addition to telephoning her union representative in mid-November she collected a form IT1 from the Ashford Tribunal which she then completed and signed and dated 1 December 2000.  Dr Puckett adds that in the absence of any improvement she was referred to a Consultant Psychiatrist, 
and
(ii)  a short letter from that Psychiatrist, addressed to the Appellant and dated 11 December 2001, in which he confirmed that he had seen her on three occasions since 7 July 2001.  He does not proffer an opinion as to her ability to complete form IT1 during the period 13 July - 12 October 2000.

(4)  said that during the Tribunal hearing she had said that the Tribunal could get medical evidence by contacting her General Practitioner or she could send it to the Tribunal the following day.  It was not suggested to her that she could apply for an adjournment so that she could obtain that evidence

10	Asked to comment on that evidence the Chairman, having reviewed his notes, found no reference to the Appellant saying she could send the medical evidence the following day.  It was not his practice to collect evidence on behalf of parties.  He had no note that she had applied for an adjournment.  

11	We return to the questions raised in the appeal.  As to whether the Appellant may have thought that time ran from 6 September 2000:
 (a) she did not; on her evidence she knew that her contract terminated on 13 July,
 and
(b) the effective date of termination was 13 July for the purposes of the primary limitation period.

12	Further, she had union advice available to her.  She had obtained such advice in December 1999 and again in November 2000.  If she did not seek advice during the period 13 July to 12 October 2000, particularly after her unsuccessful interview on 5 September, she could have done so, subject to her medical condition.  

13	It is important to remember that new evidence will only be admitted on appeal in rare circumstances. First, the threefold test formulated by Denning LJ in Ladd -v- Marshall [1954] 1 WLR 1489, 1491, adopted in this jurisdiction by Popplewell J in Wileman -v- Minilec Engineering Ltd [1988] ICR 318, must be satisfied.  

14	The first question is whether the medical evidence now produced could, with reasonable diligence, have been obtained for use at the hearing on 21 March 2001.  Plainly it could; the Appellant saw her GP in November 2000.  In our judgment it is not incumbent on the Tribunal to collect the evidence, nor to offer the Appellant an adjournment whilst that is done.  In the absence of any medical evidence the Tribunal was entitled to conclude that the Appellant’s medical condition did not render it not reasonably practicable for her to present her complaint within time.  

15	In any event, on its face the short letter from the General Practitioner speaks only as to her condition as he found it to be in November 2000.  He proffers no opinion as to her condition during the relevant period which expired on 12 October 2000.  Further, her incapacity for writing statements proved to be of short duration since on 1 December she completed her form IT1.

16	In all the circumstances we have concluded that there are no grounds in law for interfering with the Tribunal’s Decision.  This appeal must be dismissed.