Scott v Matthew Arnold & Baldwin Solicitors
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer |
| Judgment Date | 21 February 2011 |
| Neutral Citation | [2011] EWCA Civ 252 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2011 |
| Docket Number | Case No: A2/2010/1361 |
[2011] EWCA Civ 252
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Mcmullen QC)
Before: Lord Justice Rimer
Case No: A2/2010/1361
UKEATPA/1712/09/JOJ
The Applicant, Euphemia Scott, appeared in person.
The Respondent did not appear and was not represented.
Lord Justice Rimer:
This is a renewed application for permission to appeal by Euphemia Scott, who appears in person as she has done at all stages of these proceedings. Mummery LJ refused permission on the papers on 10 August 2010. By her appellant's notice Miss Scott seeks to appeal against, first, a reserved judgment of the Watford Employment Tribunal (Employment Judge Hyams presiding) dated 4 December 2009 and sent to the parties on 14 December 2009 by which the tribunal dismissed Miss Scott's claim for unfair dismissal; and, secondly, against the order dated 19 May 2010 of His Honour Judge McMullen QC in the Employment Appeal Tribunal by which he dismissed her application under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 and thus, in substance, dismissed her appeal against the employment tribunal's judgment. He did so because he assessed that she had no grounds of appeal that had a reasonable prospect of success in the appeal tribunal. He also gave full written reasons as to why he refused Miss Scott permission to appeal to the Court of Appeal.
I point out straight away that Miss Scott is mistaken in seeking to appeal to the Court of Appeal directly against the judgment of the employment tribunal. No appeal lies from an employment tribunal direct to the Court of Appeal. It lies only to the appeal tribunal, and of course Miss Scott sought so to appeal the employment tribunal's decision. The most that she can now hope for is to appeal against the adverse decision of the appeal tribunal and she can only hope to obtain permission to do that if she can first identify an arguable error of law on the part of the appeal tribunal. Such an error might of course be, and in these employment cases often is, an error in the nature of a failure to correct an error of law on the part of the employment tribunal. Mummery LJ concluded on the papers, however, that Miss Scott is unable to identify any such error.
The respondent to the application is Matthew Arnold & Baldwin, a firm of solicitors. Miss Scott is a former employee of that firm, having started her employment on 4 September 2006. She was one of two secretaries in the respondent's Insolvency, Corporate Recovery and Restructuring Team, the solicitors in which included Ms Bunn. Miss Scott was ultimately dismissed and brought a claim based on "ordinary" unfair dismissal, but she also claimed that the reason, or principal reason, for her dismissal was the making by her of a protected disclosure within section 43A of the Employment Rights Act 1996. For the reasons given in its reserved judgment, the tribunal rejected both limbs of her claim, holding that Miss Scott had been fairly dismissed and holding as to the latter limb of her claim that she had not made the relevant disclosure in good faith. The tribunal also held that even if it were wrong in rejecting the unfair dismissal claims, Miss Scott had herself contributed to the dismissal to the extent of 100 per cent and that her conduct was such that it would not be just and equitable to make any award to her. So the tribunal made quite firm findings adverse to the case that Miss Scott had brought.
As is commonly done by those who, by choice or necessity, act for themselves before an employment tribunal, Miss Scott applied for a review of the tribunal's decision. The Employment Judge, however, for reasons given on 26 January 2010, refused a review. By her original grounds of appeal to the appeal tribunal, Miss Scott advanced a single ground of appeal, namely that at the conclusion of the five-day oral hearing before the employment tribunal on 13 November 2009, the Employment Judge announced that the tribunal had found in her favour and that the reasons for that decision would be reserved and a date for a remedy hearing was also fixed. In the event, the reasons later produced on 4 December 2009 were reasons in support of the tribunal's judgment dismissing Miss Scott's claims.
That account of the events of 13 November 2009 was rejected by the Employment Judge, who made it clear in his review decision that the employment tribunal had not reached any decision as to the outcome of the claims at the end of the original tribunal hearing. What happened was that the decision was simply reserved in the manner in which it commonly is and the remedy hearing date that was fixed was so fixed in case Miss Scott did win. In the event she did not, although that fixture was in fact used for dealing with certain costs applications that the parties wished to make.
When Miss Scott's single ground of appeal came before the appeal tribunal on what is known as the "sift", a filtering process to see whether the grounds of appeal raise any proper grounds that merit going forward to a full hearing, His Honour Judge Peter Clark recited in his ruling the events I have summarised and added that in any event the employment tribunal's written judgment was definitive. That, if I may say so, seems to me to be correct. Even if, contrary to his assertion, the Employment Judge had said what Miss Scott asserts, it would, I consider, have been open to the tribunal before its order was drawn up to recall the decision and to substitute its revised decision once it had considered the case and made the findings of fact that it did. There was, therefore, so it seems to me, nothing in this single ground of appeal. I am, however, prepared to accept that Miss Scott did genuinely believe that she heard on 13 November what she asserts she heard and I can well understand how shocked and disappointed she would have been when she subsequently received the written judgment and reasons which were to such different, and no doubt from her point of view, devastating effect.
I presume that, under Rule 3(7) of the Employment Appeal Tribunal Rules, Judge Clark refused to permit that single ground of appeal to proceed to a full hearing. What then happened was that Miss Scott, as she was entitled to do, asked for an oral hearing under Rule 3(10) at which she hoped to make good her case that she had an arguable case on that ground that deserved to go to a full hearing of the appeal tribunal. That application is the one that came before Judge McMullen on 19 May 2010, at which (as I infer from Judge McMullen's judgment) although Miss Scott had been offered the services of counsel under the ELAAS scheme, she chose to represent herself. By then she had decided to amend her grounds of appeal to add by way of an additional ground that she had raised a grievance with the respondent on 21 December 2007, one with which she said the respondent had failed to deal. She said it was a failure that had caused the breakdown of trust as between her and the respondent and her point was that the cause of that failure was the respondent.
Judge McMullen permitted Miss Scott to argue that new point with a view to persuading him that it raised a ground of appeal that merited going forward to a full hearing on notice to the respondent. But he explained, however, that the employment tribunal had expressly dealt with the matter of the second grievance in paragraph 72 of its reasons, where it said:
"The complaint written by the Claimant on 21 December...
To continue reading
Request your trial
-
AXA S.A. v Genworth Financial International Holdings, Inc.
...as indicating the general principle underlying estoppel by acquiescence” and the cases cited below. 73. In ING Bank NV v Ros Roca SA [2011] EWCA Civ 252 Rix LJ observed obiter that a duty to speak might arise pursuant to either contractual obligations involving collaboration and co-ordinat......
-
The Cultural Foundation (doing business as American School of Dubai) v Beazley Furlonge Ltd (as managing agent for Syndicate AFB 2623/623 at Lloyd's)
...cases including statements of Lord Steyn in Indian Endurance [1998] AC 878, 913 and Rix LJ ( obiter) in ING Bank NV v Ros Roca SA [2011] EWCA Civ 252. Sir Christopher continued: “74 Blair J considered this line of authority in Starbev GP Ltd v Interbrew Central European Holdings BV [2014]......
-
Ted Baker Plc and Another v Axa Insurance UK Plc and Others
...as indicating the general principle underlying estoppel by acquiescence" and the cases cited below. 73 In ING Bank NV v Ros Roca SA [2011] EWCA Civ 252 Rix LJ observed obiter that a duty to speak might arise pursuant to either contractual obligations involving collaboration and co-ordinatio......
-
Kinara Trustee Ltd v Infinity Enterprises NZ Ltd
...EWCA Civ 4097; see also The Lutetian [1982] 2 Llyod's Rep 140 at 157; Indian Endurance [1998] AC 878 at 913; ING Bank NV v Ros Roca SA [2011] EWCA Civ 252. 61 At 62 Luke Tattersall “Silence is deadly: Estoppel by acquiescence” [2018] 134 LQR 203 at 208. 63 Part of the first element of Wils......