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Case No: A2/2009/1979

Neutral Citation Number: [2010] EWCA Civ 793

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

(HIS HONOUR JUDGE MCMULLEN QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday, 25 June 2010

Before:

LORD JUSTICE PILL

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Between:

MRS SURRIYA JABEEN (**Applicant)

**- and -

TOWER HAMLETS PRIMARY CARE TRUST (Respondent)

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(DAR Transcript of

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Mr Jabeen appeared on behalf of his wife, the Applicant

The Respondent did not appear and was not represented.

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Judgment

(As Approved by the Court)

Crown Copyright ©

Lord Justice Pill:

1. This is an application by Mrs Surriya Jabeen for permission to appeal against an order of His Honour Judge McMullen QC sitting alone at the Employment Appeal Tribunal ("EAT") on 19 August 2009. Judge McMullen dismissed, as appears from paragraph 24 of his written determination, what he described as "the procedural grounds of appeal". He went on to say that had he dealt with what he called the "substantive grounds", which he held had already been dealt with, he would have dismissed those too.

1. The applicant began work for the Tower Hamlets Primary Care Trust as a staff nurse in June 1995. In 2001 a long-term absence began. In November 2006 a letter was written to her warning that her employment might be terminated. Between 12 December 2006 and 16 December 2007 the appellant was in Pakistan. In January 2007 the applicant was invited to attend a meeting. On 2 February 2007 a letter was written to her informing her that she would be dismissed with effect from 5 February 2007. On her return from Pakistan the applicant met Ms White, who is the Trust's Associate Director of Services for Older People and Rehabilitation, and I have been referred to the terms of that letter.

1. A High Court claim was issued by the applicant on 30 January 2008 (that claim is in the bundle). The claim to the employment tribunal was issued on 22 April 2008. The application was refused by Employment Judge Goodrich on 20 October 2008, the grounds being that the application was out of time and the judge was not prepared to exercise his discretion to extend time. A Notice of Appeal to the EAT was issued. There was a hearing before His Honour Judge Serota QC. There was a further hearing (to which I have referred) before His Honour Judge McMullen QC when he made the order now challenged.

1. Mrs Jabeen appears this morning by her husband, who has addressed the court. A letter was written requesting an interpreter, though that letter was sent only very recently and did not either give contact details or the language into which it was sought to translate. I am quite satisfied, having read the papers and the court appearances which have been made and the material are dealing with the employment, that Mr and Mrs Jabeen's knowledge of English is sufficient to conduct this hearing. Mr Jabeen has addressed the court clearly and plainly and understood points that I was putting to him. Mr and Mrs Jabeen have no need for an interpreter, whatever other language they had in mind.

1. The application is made, first, on the basis that District Judge Goodrich was wrong in his view of the time limit and, secondly, on the basis that there was a fatal procedural error in that District Judge Goodrich first indicated that he would find for Mrs Jabeen and, following the short adjournment, gave a judgment to the contrary.

1. There were written grounds of appeal. There is reference in the bundles to a skeleton argument, but that did not appear. The grounds of appeal state:

"The Judge made Error of Law and…failed to consider the Claimant's case which is crystal clear and within the scope of limitation. As per the law of limitation the Limitation starts from the day on which notice is received by the Applicant. In the appellant's case, the chronology of events are as follows. …"

They are then set out.

1. Supplementary written submissions have been made to the court and read by Mr Jabeen this morning, submitting that the dismissal letter was not received until 7 February 2008 and that the claim before the employment tribunal was initiated within three months of that date. The grounds of appeal state that Judge McMullen's order should be set aside under the Human Rights Act, that Mrs Jabeen did not have a fair hearing from Judge McMullen on 19 August 2009. The underlying submission is -- Mr Jabeen has made this clear -- that Employment Judge Goodrich was wrong in his conclusion on limitation.

1. The judgment of Employment Judge Goodrich is a careful one. He asked himself the correct questions. He referred to the case of McMaster v Manchester Airport [1998] IRLR 112. He referred to the applicant's long presence in Pakistan for a year between December 2006 and December 2007. This was one of those exceptional cases where the applicant left for Pakistan and was aware that processes had begun which could lead to her dismissal. By her failure to make any attempts to contact the Trust during that time, she shut her eyes to the likelihood that the Trust would be likely to make a decision as to her future employment. There would have been ample time for her to have contacted the Trust. The Employment Judge went on to find that if he was wrong about that, notice of termination was given at a meeting on 3 January 2008, which is referred to in the correspondence.

1. Reference has also been made to a letter from the Trust to Mrs Jabeen. That is dated 31 January 2008 and attached a copy of a letter which it is said was "sent to you by recorded and first-class mail on 4 January 2008", that is the day after the meeting. Mr Jabeen says that that letter was never received and that the dismissal was not until 7 February 2008. Thus Judge Goodrich found that the effective date of termination was by the latest three months after the applicant's departure to Pakistan. If he is wrong about that, then the effective date of termination, he said, was 3 January 2008. On either basis the applicant was out of time and Judge Goodrich did not consider it just and equitable to extend the time.

1. That point, Judge McMullen states, was dealt with by Judge Serota. Judge Serota dismissed the appeal against the substantive finding of District Judge Goodrich. Mr Jabeen has referred me to an order at page 27 of the bundle issued by Judge Serota and also to a letter from the EAT office, which states that the further appeal of Judge McMullen was to be on all grounds.

1. Judge McMullen dealt with that question in this way:

"11. In the light of that material, I have to decide the scope of this preliminary hearing. Judge Serota has given a written judgment and does not appear to have given substantive reasons. I agree with Mr Jabeen that the case manager's letter may have reassured her, but that, of course, is simply a reflection by the case manager on the judge's order and the judge's order does, indeed, make it known the appeal will be for a preliminary hearing. I am concerned not with matters of form but with matters of substance, and as a matter of substance I hold that there was an examination by Judge Serota of the Claimant's claim on the substantive grounds and he rejected those under Rule 3(10) while allowing further life to be breathed into the case by way of the procedural argument. The product of the Rule 3(10) hearing is the preliminary hearing on procedure only. [Judge Serota has subsequently issued an amended order to that effect, with reasons.]"

1. Thus Judge McMullen, after careful consideration, concluded that the only appeal to him was on the procedural ground. However, he did, having dealt with that ground, state:

"25. As to the substantive grounds, I have no doubt of the strength of feeling in Mrs Jabeen about her relationship with the Respondent in which there has been a good deal of antagonism over the years. I read most carefully her lengthy skeleton argument. I have attempted to allocate importance to the very large number of keyboard strokes which she deploys in order to make a point: underlining, bold, italics, upper case. But in my judgment this matter has been dealt with by Judge Serota. Judge Clark saw no merit in it and, I have to say, if I were to give an opinion for the purposes of Rule 3(10) I would have formed the same view as they did."

In the light of those findings, there can be no real prospect that this court will make a finding on the substantive grounds favourable to the applicant.

1. This is a renewed application which was considered on paper by Sir Richard Buxton. The first sentence of his reasons for refusing permission states:

"HHJ McMullen correctly found that the only issue left to him by HHJ Serota was the procedural issue."

Though Mr Jabeen appeared to be in doubt about the point, it is clear from the order that Mrs Jabeen was represented before Judge McMullen by counsel, Mr Doughty, appearing under the Employment Appeal Law Advice Scheme. The oral submission this morning which incorporated the later written document to which I have referred is on the substantive issue and I refuse permission on that ground. I asked Mr Jabeen whether his wife was proceeding with her application on the procedural ground and she is doing so. Judge McMullen has dealt with that in detail, as has Sir Richard Buxton on a consideration of the papers.

1. In his summary, Judge McMullen states:

"On the material available at a contested preliminary hearing, there was no prospect that on live evidence the EAT would find that an Employment Judge announced a decision refusing to strike out the Claimant's case before lunch and without explanation gave a Judgement to the opposite effect after lunch. The Claimant was not a reliable reporter of her own legal proceedings, her accounts not being supported by respectively her junior and leading Counsel."

1. The allegation of bias in my judgment has no real prospect of success. Counsel then appearing for the applicant do not support her views as so what happened before Employment Judge Goodrich. It is not accepted by Judge Goodrich himself. It has carefully been considered by Judge McMullen, and the reasons that he gives for refusing permission on the procedural ground are wholly persuasive.

1. I do not propose to read the detailed reasoning of Judge McMullen. It appears at paragraph 16 to 24 of his decision. Sir Richard Buxton stated on the procedural issue:

"HHJ McMullen correctly found that the only issue left to him by HHJ Serota was the procedural issue. As the judge observed at his §8, that view was supported by leading counsel who had represented the applicant before HHJ Serota. On the procedural issue, HHJ McMullen offered to conduct a full hearing, but records [§13] that that offer was rejected by the applicant. He therefore has to determine on the material before him whether there was any prospect of success in a full appeal. None of the lawyers present at the hearing before EJ Goodrich, including her own counsel Mr Brounger, supported the applicant's account, which the judge, rightly, thought inherently implausible. For the reasons given by the judge, the applicant is wrong in thinking that she would or could be allowed to cross-examine either EJ Goodrich or Mr Brounger. There is no prospect of the full court differing from the view of HHJ McMullen."

1. I agree with that conclusion. I have considered the written and oral submissions made to me forcefully by Mr Jabeen on his wife's behalf, but I am quite unable to hold that there is a prospect of a successful appeal and the application is refused.

Order: Application refused