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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bari v London Borough Of Waltham Forest [2001] EWCA Civ 2064 (21 December 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/2064.html Cite as: [2001] EWCA Civ 2064

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Wilcox))

		Royal Courts of Justice Strand London WC2 Friday, 21st December 2001

Friday, 21st December 2001

1. LORD JUSTICE PETER GIBSON: This is an application by Shamin Bari to reinstate an appeal against a decision of the EAT. The application bears a reference number 6397. It was one of three applications, each to reinstate an appeal which had been dismissed earlier. Each has a protracted procedural history. Two of the applications came before Keene LJ on 29th October 2001 and were dismissed. The third came before him that day but was adjourned as Mrs Bari's husband, whom the Lord Justice allowed to speak for Mrs Bari, became ill before he could deal with that application. The hearing was adjourned until 15th November 2001, but Mrs Bari that morning faxed a letter saying that her husband was ill, and she asked for an adjournment. Keene LJ allowed an adjournment but indicated that a further adjournment was unlikely and said that, if there was no attendance on the next occasion when the matter was listed, the court would deal with it simply on the basis of the documents which were lodged. He pointed out that the documents were extensive and that they would enable the court to deal justly with the merits of Mrs Bari's argument.
2. Mr Bari by a letter dictated on 12th November and Mrs Bari by letters of 15th faxed on 15th November asked that the application be listed for hearing on or after 20th December. Hence the hearing today. A letter was sent to Mrs Bari notifying her of the date of the hearing. That was in standard form which requires a litigant to get in touch with the Civil Appeals Office to find the time when the case is to be listed. She did not do that. It was listed for 10 o'clock this morning. She was not here then. However I have now been supplied with a fax, which is a further letter from Mrs Bari, in which she says that her husband is in hospital and she asks that there should be a further adjournment for six weeks. She sent a revised set of outline submissions. These are typed in small and close type running to eight pages. I have had the opportunity to consider those submissions. Like Keene LJ, I can see no reason why this court cannot deal justly with the merits of her argument on the documents before the court. Employment cases always should be dealt with promptly, and this case has far too lengthy a procedural history as it is to support yet another adjournment. Accordingly I would refuse the adjournment, and I will now proceed to explain the conclusions which I have reached on her application. I should add that Mrs Bari asked earlier for a review of Keene LJ's decision in the other two applications. This court is not an Employment Tribunal or an EAT with a power to review its own decisions. Mrs Bari has reached the end of the road on those appeals and I say no more about them.
3. I can state the background very shortly because this application has already been the subject of a reasoned decision of this court. On 21st December 2000 Mummery LJ gave a judgment setting out that background and his reasons why he refused Mrs Bari's application. On that occasion she was not present in court and claimed that she had not been notified of the hearing date.
4. Mrs Bari was employed by the respondent, the London Borough of Waltham Forest ("the Council"), as a social worker's assistant from 18th July 1988. At her instigation, as the Tribunal was to find, the Council decided that she should be retired on the grounds of ill-health. She was given seven weeks' notice which ended on 30th June 1996. On 7th September 1996 she applied to an Employment Tribunal raising a number of complaints including unfair and wrongful dismissal.
5. The Tribunal, sitting at Stratford, on 5th May 1998 dismissed her claim. It held that the Council genuinely believed on reasonable grounds that Mrs Bari wanted to be dismissed on health grounds which would then provide her with the financial benefits of an enhanced pension. The Tribunal held that there was no reason to doubt the opinion of the Council's medical adviser, Dr Howlett, that she should be retired on medical grounds, and there was no reason for the Council to doubt that it was doing what Mrs Bari herself wished. Accordingly Mrs Bari was dismissed and the Tribunal found that there had been no defect in the Council's procedures to make the dismissal unfair. It found the dismissal was fair and was not wrongful.
6. Mrs Bari appealed that decision. The EAT held on 2nd December 1998 that there were no grounds for challenging the decision of 5th May 1998, which the EAT described as "a model of clarity in both substance and form".
7. Mrs Bari sought a review of that decision as well as leave to appeal. The EAT refused. She applied to this court. That came on before Evans LJ and Mummery LJ on 13th December 1999. She did not appear, nor was she represented, and her application was dismissed and the order was sent to her. She claimed she never received notice of the hearing. She applied to reinstate the application for permission to appeal, that being the application which came before Mummery LJ and is now before me. Mummery LJ said this in his judgment given on 21st December 2000:

"13.In my judgment, Mrs Bari should not be given permission to reinstate the earlier applications for permission to appeal which were dismissed just over a year ago. It does not appear to me, from reading the decision of the Employment Tribunal on her unfair and wrongful dismissal claim, that there was any error of law. The tribunal found as a fact that she had been dismissed in accordance with the local authority's procedure relating to early retirement on the ground of ill health. It found that there had been no unfair failure to follow the applicable procedure and no breach of duty in failing to consult her further before terminating her employment on that ground. I agree with the judgment of Judge Peter Clark in the Appeal Tribunal that there was no arguable error of law in the Employment Tribunal's decision.

14.In those circumstances I refuse to reinstate the applications for permission to appeal. There is no real prospect of them succeeding."

8. Again Mrs Bari claimed that she did not receive notification of the hearing. Hence the further hearings of the application which came before Keene LJ, as I have recounted, and now comes before me.
9. Mrs Bari's revised outline submission raises what she claims are arguable points of law. They centre on, first, what she says was the Council's failure to establish the reason, or principal reason, for dismissal and the failure of the Tribunal to find what Mrs Bari had alleged was the competing reason for dismissal; second, the Tribunal's failure to consider all the circumstances in applying the statutory test of reasonableness and the Tribunal's failure to find the dismissal unfair when the Council's own procedures were not followed; and, third, what Mrs Bari calls procedural mishaps such as the Tribunal's refusal of an adjournment pending an appeal for discovery of Dr Howlett's notes and the failure to call that doctor on whose recommendation the Council had acted.
10. In my judgment none of these points has any real prospect of success. The Tribunal is the sole tribunal of fact. It found as a fact that the dismissal was on the grounds of ill-health at the request of Mrs Bari, and that there was no defect in the Council's procedure which made the dismissal unfair.
11. It is quite impossible to sustain the argument which is advanced by Mrs Bari that the decision of the Tribunal was perverse. In my judgment the EAT was right to dismiss the like arguments, and I respectfully agree with Mummery LJ's view. So far as the alleged procedural mishaps are concerned, the Tribunal in my judgment acted well within the proper ambit of its discretion to refuse an adjournment. A witness summons had been issued at Mrs Bari's request for Dr Howlett to attend if called. But, rightly, the Tribunal told Mrs Bari that Dr Howlett, being her own witness, could not be cross-examined. There is simply nothing in any of the other points which Mrs Bari wishes to take.
12. For these reasons therefore there is no real prospect of success on an appeal on any of the grounds put forward by Mrs Bari. Nor is there any other compelling reason why this appeal should go ahead.
13. I accordingly would refuse the application for the reinstatement of the appeal.
Order: Application dismissed.