Appeal No. UKEATPA/1339/08/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 August 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MRS J WELLS	APPELLANT

ST EDWARDS RC PRIMARY SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION - APPELLANT ONLY

	APPEARANCES

For the Appellant	MR I WELLS
(Representative)	

SUMMARY
PRACTICE AND PROCEDURE
Review
Appellate jurisdiction/reasons/Burns-Barke
There was no explanation on appeal for the Claimant’s out of time application for a review of the Employment Tribunal’s dismissal of her case when she did not attend. As a matter of substance the Judgment was anyway correct. Application to adduce new evidence dismissed. Ladd v Marshall applied.

HIS HONOUR JUDGE McMULLEN QC 
1.	This case is about Employment Tribunal procedure in reviewing a judgment made in the absence of a party and the admission of new evidence.  I will refer to the parties as the Claimant and the Respondents.

Introduction
2.	It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Creed sitting alone at Manchester on 1 October 2008, registered with reasons on 15 October 2008.

3.	The Claimant had, at stages, been represented by her husband but neither attended.  The Respondents were represented by Counsel.  The Claimant continues to be represented by her husband, who has made substantial written and oral submissions.

The facts
4.	The Claimant was employed at St Edward’s Roman Catholic Primary School Oldham as a midday supervisor for an hour and a half a day from the 1990s until she was dismissed in 2006 by reason of what the Respondents say is redundancy; the need of the school for a person in that position to discharge the services which had been given to a special needs pupil no longer existed, the pupil having left the school.

5.	The Claimant claimed unfair dismissal and contended that she was treated less favourably on the ground of her sex.  It is necessary for me to say no more about the facts because there has not been a trial.

6.	The Employment Tribunal dismissed the claim pursuant to Rule 27 at a hearing on 12 September 2007 which the Claimant did not attend, nor did her husband, in a judgment recorded on 18 September 2007 without reasons. The Tribunal considered all the information together with a bundle of documents and legal precedents.  The Tribunal noted that the Claimant had failed to attend at the appointed time and place and failed to provide any explanation.

EAT procedure
7.	The Claimant appeals.  On the sift of this Notice of Appeal in accordance with practice direction paragraph 9, Silber J concluded that it had no reasonable prospect of success.  Where no point of law is found, section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction to hear the case.  His opinion was given in respect of the review judgment of 15 October 2008 and it is that which is the vehicle for the arguments before me today. The Claimant was given the opportunity to amend her Notice of Appeal or to have a hearing.  She has done both. 

8.	The case was listed for an hour, to include Judgment, as are all Rule 3 cases, in front of HHJ Reid QC on 3 June 2009.  The Claimant was represented by Mr Wells, she not attending. Mr Wells opened the application for 20 minutes.  The Judge then decided that he would adjourn the case.  He set aside a further half day for this hearing and said that an application could be made for the adduction by the Claimant of new evidence. I have no clear understanding why, since there is no Judgment and I have to rely on what Mr Wells asserts about what the Judge told him.

9.	What Judge Reid described as an adjourned hearing is plainly inapt as a matter of language, since he did not adjourn the hearing to himself. So in this unusual hearing I am dealing with an application for additional material to be introduced, as Judge Reid told Mr Wells, on the basis of Ladd v Marshall [1954] 1 WLR 1489, and the Practice Direction para 8.2. The standard direction on new evidence is given when an order is made for a preliminary hearing or a full hearing, precisely because the Respondent is entitled to respond to it. This cannot be done in the Appellant-only zone of Rule 3. In my view the Appellant has a right to a hearing before a judge, not two hearings before different judges, lasting almost a day and necessarily involving the Respondent’s input if the application for new evidence cannot be dismissed summarily. 

10.	In Haritaki v SEEDA EATPA/0006/08 paragraphs 1 to 13, I set out my approach to applications under Rule 3; it should be read with this judgment. I am hearing this case on more material than was available to Silber J.  The question for me is whether there are any reasonable prospects in the appeal.  

The 2007 appeal
11.	There is a further complication relating to another appeal which Mrs Wells brought and which neither Silber J nor Judge Reid mentions. The substance of the appeal PA/0387/07 was interim steps along the way to the hearing before the Employment Tribunal.  It concerned material said to have been available about the Respondent’s response in an ET3.  HHJ Peter Clark on the sift considered that it had no reasonable prospect of success.  He affirmed that on seeing a fresh Notice of Appeal under Rule 3(8). 

12.	The Claimant was dissatisfied and so the matter came before HHJ Ansell on 5 September 2007. He was concerned with two matters: first, an application to adjourn the 3(10) hearing and secondly an application, if it were not adjourned, under Rule 3(10) for a full hearing.  He refused the application to adjourn made by Mr Wells and he dismissed the application under Rule 3. There had been a very substantial amount of correspondence and additional material. Judge Ansell noted that the Claimant had been represented by NK Legal who had made an application to the EAT for an adjournment.  It was still representing the Claimant up to 28 August 2007 when they wrote saying they no longer represented her.

13.	Judge Ansell made clear in his Judgment, which should be read with this, that Mr Wells is a forceful advocate making allegations of fabrication and collusion about the conduct of his wife’s case between Oldham Metropolitan Borough Council, the local education authority responsible for the Respondents’ school, and the Employment Tribunal administration. 

14.	At the hearing, Mr Stewart of Counsel, acting under the aegis of the Employment Law Appeal Advice Scheme, made representations.  Mr Wells points out that Mr Stewart technically should not have done that because Mrs Wells was not present to instruct him under the ELAA Scheme rules; but he has told me that he assured Mr Stewart that he had his wife’s consent to have Mr Stewart represent her and so Mr Stewart, very properly and professionally, was able to make representations.

15.	Mr Wells makes criticism of Mr Stewart. I see no basis for that nor do I see any basis for criticism of the procedure before Judge Ansell, nor is it my position to do so. Mr Wells contends that the judgment of Judge Ansell is outrageous and ludicrous. He decided, on his wife’s behalf, to apply for permission to appeal to the Court of Appeal.  He received advice against doing that from a law centre in Manchester and so pursued the matter no further. That proceeding did form the basis of an application in the current proceedings, that is the proceedings for a review.

The second appeal
16.	Within a few days of his return from the EAT on 5 September 2007, the Employment Tribunal on 12 September 2007 began the two-day hearing which neither the Claimant nor Mr Wells attended.  He told me today that she had no notice of this.  The Tribunal did not accept that in its review judgment.

17.	Is plain to me, as it was to Judge Ansell, that NK Legal was acting on behalf of the Claimant at the relevant times.  A letter from NK Legal dated 10 August 2007 includes the following,
“We request that the new date of 17 August for the trial bundle also be postponed.”

18.	That is plainly a reference to a direction by the Employment Tribunal in Manchester for the preparation of the case which was due to be heard on 12 September.  The Employment Tribunal traced the electronic system and found that the Notice of Hearing was given to the Claimant. In my judgment, there is no explanation for that statement by NK Legal other than that it knew that there was a timetable for the preparation of a hearing on 12 September.

19.	Once the judgment had been sent to the parties on 18 September 2007, Mr Wells sought a review.  The history of the review is recounted in the judgment which is properly before me.  Strictly speaking, since the 2007 judgment was not appealed and it has not been disturbed by review it remains in place.  A party is entitled to appeal and to seek a review.  Strictly as a matter of procedure, there being no appeal against the judgment, the judgment should stand but I will take a broader view and look at it as a matter relating to the review. 

20.	A year later, the Tribunal decided that the review application should proceed but the application for review is dismissed. That is a contradiction in terms: I have often pointed out that under Rule 36(1), unless a judge decides that the application has no reasonable prospect of success, the application succeeds and there must be a review at which there may be the same or a different order: see  Secretary of State for Health v Rance [2007] IRLR 665, and Chowles v West UKEAT0473/08

21.	Thus the three-person Tribunal met on 1 October 2008 with Counsel appearing for the Respondent, heard argument, considered correspondence and therefore was conducting a review.  What the Tribunal meant was that it did not revoke or vary the order which it had made and that is why I say, strictly speaking, there is no live appeal against the judgment of 18 September 2007.

22.	In the review, the Employment Tribunal considered at length the full correspondence.  It decided that no application had been made within the 14 days required.  There is no legal argument addressed by Mr Wells against that.  He gave no reason as to why the review application was made out of time.  That is capable of concluding this proceeding and I will make that decision

23.	The Tribunal, lest that might be thought an overly technical approach although within its jurisdiction, decided to look at the matter rather more broadly. It took the view that the material put before it explaining why neither the Claimant nor Mr Wells attended on 12 September 2007, was inadequate.

24.	I see no basis in fact for challenging those findings nor, as is important in on appeal to the EAT, any question of law arising out of their application.  Reasons were given relating to medical health but the Tribunal has found that none of those explained why neither Mr Wells nor Mrs Wells attended at the hearing and, on that basis, I can see no fault with the judgment and if necessary would make the same decision on this application.

New evidence
25.	In deference to Judge Reid’s order, and because new evidence may be adduced at any time, I will consider the application to adduce new evidence.  Mr Wells says, not rhetorically and with some force as he does with all his arguments, “What is the point of Judge Reid ordering a hearing as to new evidence if Ladd v Marshall does not apply?” 

26.	Ladd v Marshall does apply in the EAT: para 9 above. It has to relate to the issue before the Employment Tribunal. I pointed out to Mr Wells many times during his address to me that the focus of this case is the review judgment.  Again in deference to Judge Reid’s order, I have read all of the material which Mr Wells has produced. It runs to about 150 pages, they are not consecutively marked.  It is an argument interspersed liberally with documents referred to.  It is difficult to read; on almost every page of the documents are manuscript insertions and comments.  Of the documents which Mr Wells has created, there are very substantial keystrokes for emphasis.  He alleges fraud and perjury.  He makes major criticisms of Judge Ansell.

27.	My approach is to ask the three questions in Ladd v Marshall: is it material which could have been produced before the review judgment?  Would it have had an important influence upon the proceedings?  Is it apparently credible?  In my judgment, it fails all of these tests.  The allegations are incredible.  The material could have been produced before the review and it would certainly not have had any effect upon the review judgment, largely because it appears to be incredible. 

28.	I have attempted to explain to Mr Wells how narrow is the scope of today’s hearing; it is to challenge the Judgment of the Employment Tribunal on the review.  This material, as he frankly told me, relates to his criticism of the Employment Tribunal in 2007 and the issues before Judge Ansell but, of course, that is out of my hands.  I can, however, look at this material in relation the review judgment which is being dealt with on appeal now and I hold, for the same three reasons, that it will not be admitted. Because I know how unsatisfactory that will sound to Mr and Mrs Wells, they can be assured that I have read it and I form the view that it is unrelated to the central issue of the application before me.

29.	Mr Wells puts his case forcefully, single-mindedly.  He tells me he is a former investigating officer of HM Customs and Excise.  He and his wife are plainly exercised by what they see as conspiracies.  I regard these allegations as fantastical.

Disposal
30.	Standing back, the real issue in the application before me under Rule 3 is why there was no attendance on 12 September 2007 and none of these allegations of fraud, perjury, corruption, fabrication, criticism of Counsel, criticism of solicitors, has anything to do with that single issue.  Again, I appreciate that the Wells will find this answer unsatisfactory. Pursuing this case through the administrative channels of the ET and the EAT has obviously taken a good deal of their time and energy for a case which arose in 2006.  The time has come to draw a line under all this material.  If I am right in what I regard as the correct focus of the legal issues in Mrs Wells’ case, that is, whether it should have been dismissed, then none of this material is relevant. I join with the Employment Tribunal three times, HHJ Clark twice, HHJ Ansell, Silber J and HHJ Reid QC in finding nothing in her case. 

31.	The application for the adduction of new material is refused but if I am wrong, I have read it and it will not be relevant to any appeal. The application under Rule 3(10) is dismissed and so is the appeal.