Appeal No. EAT/0128/01 & EAT/0431/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 July 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS T A MARSLAND
MR P A L PARKER CBE

MS SIVANANDAN	APPELLANT

LONDON BOROUGH OF ENFIELD & OTHERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS N SIVANANDAN
(the Appellant in Person)	
For the Respondent	MS ALISON GARDEN
(Pupil)
Instructed by:
London Borough of Enfield
Borough Solicitors Department
PO Box 50, Civic Centre
Silver Street
Enfield
Middx EN1 3XA

&

MS CAROLINE BATES
Instructed by:
Messrs Rowley Ashworth Solicitors
247 The Broadway
Wimbledon
London SW19 1SE	

JUSTICE LINDSAY (PRESIDENT)

1	In this matter the Employment Appeal Tribunal has previously delivered a number of judgments at the Preliminary Hearing stage.  For a full understanding of the background it would be wise to read the judgments of the Employment Appeal Tribunal of 25 April 2001 and the several judgments of 11 July 2001.

2	Before us now we have, as full hearings, two related matters; one an appeal against the decision to strike out Ms Sivanandan’s IT1 and the other against a decision of the Employment Tribunal declining to review that strike-out decision.

3	The first is a decision of the Employment Tribunal at Stratford under the chairmanship of Ms V K Gay and the second is a decision of Ms Gay as a full time Chairman on her own.  In both cases the Appellant is Ms Sivanandan, who is in person before us as, indeed, she was below.

4	The Respondents fall into three groups, first the London Borough of Enfield, secondly some 16 individuals, named members of the Executive Committee of Enfield Race Equality Council (sometimes referred to as “EREC”), and thirdly Chandra Bhatia.  All the Respondents appear before us by Mr Linden, who had also appeared on the application to strike out below.

5	Ms Sivanandan is no bewildered rustic with no knowledge or familiarity with the law but a clever and highly articulate woman with, by now (and even at the time of the events of which we shall need to speak) some experience of Employment Tribunal law and practice and of race discrimination law.  She tells us, and it is easy to believe, that she reads and absorbs material relatively quickly.
6	She had already, by the time of the events in question, not only conducted a not-insubstantial case, one spread over some 6 days, at the Employment Tribunal on her own behalf but also had helped one or more others to prepare in part or in whole, or to present in part or in whole, their cases, including her addressing Employment Tribunals on those others’ behalf.

7	In the matter before us Ms Sivanandan had presented an IT1 for racial discrimination, unfair dismissal, breach of contract and sex discrimination as long ago at 10 March 1997.  She had been dismissed on 11 December 1996.  Her IT1 has been amended since.  It has generated a great deal of interlocutory work, including previous appeals to the Employment Appeal Tribunal.

8	Then on 24 January 2000 the matter was listed to come on for a substantive hearing on 5 September 2000.  It was listed for 35 days.  Each side therefore had a further 7 ¼ months or so to prepare their respective cases.  The Respondents had said the hearing would take only 25 days; Ms Sivanandan said at that stage that it would take 35 and the Tribunal fixed the matter on that 35 day basis.  That was the second time a full substantive hearing had been listed.  It had first been listed back in October 1998 for hearing in March 1999 but that had been later postponed.

9	On 1-3 February 2000 there was an adjourned Interlocutory Hearing.  That was, by then, the 6th Interlocutory Hearing in the matter.  It had been adjourned from 29 November 1999 because Ms Sivanandan was absent suffering from migraine.  Orders for discovery were then made against all parties.

10	The Tribunal then said:

(v)	“The Tribunal is mindful of the need for preparation for the full merits hearing to be pressed forward as vigorously as possible.  In respect of the orders for discovery now made, it was agreed that discovery should be completed by all parties by 9 March 2000 with inspection thereafter within 14 days: however, part of the time allowed is now past and the orders for discovery are that it is to be completed by 30 March 2000 with inspection thereafter within 14 days.”

11	As to witness statements this was said:

(viii)	“It was agreed by all parties that the evidence of witnesses should be given by reference to prepared witness statements.  The parties should bring to the hearing typed (or legibly written) statements of those witnesses intended to be called, with sufficient copies for the members of the Tribunal and for the witness.  It was agreed that witness statements should be exchanged between the parties not later than 1 August 2000.  The parties are reminded the witness statement should contain the whole of the evidence in chief of the witness, except where the need for additional evidence arises from the witness statement of other parties and where it has been honestly overlooked or for any other good and substantial reason.”

So the parties had some 5 months or so to prepare witness statements.

12	On 3 and 4 April 2000 a later date, namely 5 May 2000, was fixed for discovery to be made by Ms Sivanandan.  The Tribunal then said:

2)	“The order for discovery on the part of the Applicant is accordingly set aside, and substituted by an order that the Applicant will not later than 5 May 2000 disclose to the Respondents all the documents in her possession on which she intends to rely, with inspection 14 days thereafter.  Similar orders are made against the Respondents.”

13	The orders bore conventional rulings as follows:

(1)	“Any person who, without reasonable excuse, fails to comply with the requirement imposed under Rule 4(1)(b) of the Employment Tribunal Rules of Procedure 1993 is liable on summary conviction to be fined up to £1,000-00 under Section 7(4) of the Employment Tribunals Act 1996.

(2)	Failure to comply with this order may also result in the whole or part of the Originating Application being struck out at or before the hearing.”

14	However, by 9 May 2000 the Respondents had complained that the Applicant had not given the ordered discovery.  The second and third Respondents applied to strike out Ms Sivanandan’s IT1.  The Employment Tribunal warned Ms Sivanandan that a striking out was being considered by reason of her failure to give discovery.

15	The Tribunal wrote to say:

“Under power conferred by Rule 4(7) of the Employment Tribunal Rules of Procedure 1993 the Chairman is considering whether to strike out the whole or part of the Originating Application for failure to comply with the Order.  If you wish to give reasons why this should not be done, please send them to me in writing within 14 days of the date of this letter.”

That was a letter of 15 May 2000.

16	But Ms Sivanandan indicated that she had appealed against the order for discovery and in any event wished to amend her IT1.  On 1 June 2000 she was told by the Employment Tribunal that an appeal did not operate as a stay.  By then she had also claimed that the Employment Tribunal was biased against her.

17	It is an unfortunate feature of Ms Sivanandan’s litigation before Tribunals that it has, in her view, repeatedly and before different Tribunals and different Chairmen, involved bias and prejudice against her on the part of the Tribunal, either on account, she says, of her sex or her race.  Sometimes the bias is said to be one of race simpliciter – Ms Sivanandan describes herself as black.  Sometimes she says it is because she fails to fit the usual stereotypical view held by white males of a submissive Asian or African woman.

18	Objection was taken by the Respondents to Ms Sivanandan’s wish to amend.  On 8 June 2000 the Respondents’ solicitor said this:

“We note that the Applicant seeks to amend her claim to add further allegations of sex discrimination on the basis that “it was alleged by the LBE that my complaints and allegations could not be true and lack credibility because I was allegedly having a relationship with an LBE Councillor”.”

Intervening there, presumably LBE is the London Borough of Enfield.

“We cannot comment on the truth or otherwise of this allegation.  However, as a matter of law, we do not understand how the existence or otherwise of a relationship between the Applicant and any member of the Council could fall within the Sex Discrimination Act.  The Sex Discrimination Act prohibits direct and indirect sex discrimination.
In relation to direct discrimination, the Applicant must be shown less favourable treatment on the grounds of gender.  We do not understand how any allegation relating to an alleged relationship could amount to less favourable treatment on the grounds of gender.”

19	A little later in the same letter:

“In short, we consider the allegation to be spurious and we do not believe it is an allegation which falls within the Tribunal’s jurisdiction as set out by the Sex Discrimination Act.”

20	Ms Sivanandan then said that she was unwell.  On 9 June she said:

“With reference to your letter of 1 June [this is writing to the Employment Tribunal at Stratford], I request a month’s extension of time to reply owing to asthma and ill health caused by my dismissal and the conduct of the Tribunal case to date.  The medical certificate (below) is produced only for the purposes of “Tribunal/court work”.  No application to strike out should be heard without oral hearing given my disability (repetitive strain injury).  Thank you.”

21	The certificate is headed Doctor’s Statement and it says:

“I examined you today/yesterday [and neither is crossed out] and advised you that…
(b)you should refrain from work for 1 month.”

and then underneath that:

“Diagnosis of your disorder
causing absence from work:	Tribunal/Court work
Doctor’s Remarks:		severe anxiety/depression.

8 June 2000

22	It is to be noted that, whilst Ms Sivanandan has at various times referred to having suffered from asthma, ill health caused by dismissal, repetitive strain injury, carpal tunnel syndrome and migraine, that particular certificate speaks only of severe anxiety/depression and is limited to 1 month from 8 June 2000.

23	We are not saying that Ms Sivanandan did not have asthma or repetitive strain injury, for example, but one would expect Ms Sivanandan, and possibly any Employment Tribunal before whom claims were made, to notice what was either, on the one hand, a failure fully to state her medical impairments – a view which should have concerned Ms Sivanandan – or, alternatively, an exaggeration by Ms Sivanandan of her impairments – a view which might have caused concern to Employment Tribunals.

24	The Employment Tribunal, having received that certificate, replied (and this was a reply from Mr Cole, who was the Chairman at Stratford) as follows:

“Your letter of 9 June now seeks an extension of time because of your “asthma and ill health”.  Whereas the medical certificate is very hard to read it does not appear to refer to “asthma”.  In any event Mr Cole notes the certificate says you are not fit to attend “work”.  It does not appear to justify your inability to comply with the Tribunal Order.

The Chairman also asked me to point out that the Respondent is also entitled to have these proceedings resolved justly and quickly.  The Chairman takes the view that further delays is likely to case prejudice to both parties.  He also notes that you have had since early April to attend to the requirements of the Order and which does no more than require disclosure to Respondent of documents upon which you propose to rely.  Without that disclosure it is likely to be impossible for the Respondent to prepare his case properly which, in itself, will lead to delay in the determination of your claim.
The Chairman will only reconsider provided there is medical evidence to confirm your inability, through ill health, to produce the documents upon which you intend to rely.
Because you may have been delayed in the anticipation of your letter of 9 June, the Chairman allows you a final time extension for compliance until 12.00 noon on Monday 19 June 2000.  If there has not been full compliance by then a Chairman will consider whether or not your claim is to be struck out in whole or in part.  In that event your request for an oral hearing will be considered.”

25	At all events, come 9 July 2000 that first certificate would have had no weight as its time would have expired.  In the meantime, on 15 June Ms Sivanandan had repeated a reference to her ill health.  There was some unusual cause for scepticism in this area.  The Employment Tribunal later explained how that arose.  They said this:

“On 16 June the Applicant was observed to be present assisting an Applicant (i.e. not herself) at a Tribunal hearing whilst certified and claiming to be unfit for Tribunal work.  The Tribunal wrote to her mentioning this and refused to extend her time for compliance with the order.  The Applicant’s presence in fact extended over two days and she was represented as that Applicant’s McKenzie friend to a Tribunal chaired by the present Chairman.

26	This point was drawn to Ms Sivanandan’s attention.

27	On 16 June the Tribunal wrote to her saying:

“I note the clarification of your medical certificate, to which you refer.  However I note also that you have been assisting an Applicant at Stratford (in another case) by your presence over the last two days.
May I suggest you comply with the Order as directed by the Chairman.”

28	The question of a strike out was returned to by the Employment Tribunal.  On 26 June the Tribunal wrote, including this:

“By letter dated 15 May you were given the opportunity to show cause why your claim should not be struck out in whole or in part for your failure to comply with the Tribunal order dated 3 April 2000.  By my letter of 1 June and in reply to your letter of 18 May you were only allowed a further period of 10 days to comply with that order and you were told that the order would not be stayed only because you had lodged an appeal with the Employment Appeal Tribunal.  Your application in that regard, and at your own request, was dealt with by Mr Cole as the Senior Chairman.  Please refer to my letter of 13 June in that regard.”

A little later the same letter says:

“Accordingly, Mr Barry and two lay members [Mr Barrie being a Chairman at Stratford] will hear your application to amend your complaint.  They will also, and on the same occasion, hear any oral argument from you and the other parties why your Originating Application should not be struck out in line with my letter of 15 May and subsequent correspondence.  You should come prepared, if you so desire, to deal with both matters.”

29	On 13 July 2000 Ms Sivanandan obtained another doctor’s letter, by which I mean another letter from the same doctor.  It said:

“The above patient of mine has been attending an ongoing Industrial Tribunal for the past couple of years.  As you know she has had to do all her own legal work.  As time goes on she is finding it increasingly difficult to cope with the stress that this has caused.  She is now having trouble sleeping and tends to suffer from increased migraine attacks, vomiting and insomnia.
I hope this will be taken into account.
Please contact me if you have any further queries.”

It is addressed ‘TO WHOM IT MAY CONCERN.

30	But, despite that, Ms Sivanandan was conducting a spirited and lengthy correspondence relating to her case and the Employment Tribunal from their own observation and experience of her would have had no reason then to regard any difficulties in her coping as increasing.

31	The doctor’s letter does not say that she would be unfit to attend the Employment Tribunal.  It does not say that she was unfit to do ordinary preparatory work for the Tribunal hearing and the Respondents’ solicitors wrote to the Employment Tribunal a letter of some length, parts of which we need to cite.

32	On 24 July they wrote a letter including this:

“As you are aware, this matter commenced in 1997.  It is now listed for 35 days commencing on 5 September 2000.  The Tribunal ordered after its most recent hearing, exchange of list of documents upon which the parties intend to rely, by 5 May 2000 and inspection of documentation by 19 May 2000.  The Respondents complied with the various orders for discovery of the Tribunal and provided by way of draft bundles, lists and copies of documents on which they intend to rely at the full hearing.
As you are aware Ms Sivanandan has refused to comply with the Tribunal’s order on discovery.  Since these proceedings commenced, Ms Sivanandan has provided no discovery in respect of any of the allegations made at any stage.
Exchange of witness statements has been ordered for 1 August 2000.  Witness statements have been prepared in respect of our Clients.  Clearly the preparation of those witness statements has been significantly hampered by lack of any disclosure by Ms Sivanandan of the documents in her possession and upon which she will rely.
The full hearing is due to commence in 27 working days.  In the absence of documentation from Ms Sivanandan it is impossible for the Respondents to fully prepare.  The Respondents do not, however, wish to lose the dates set aside for this hearing and wish for the matter to progress, if necessary, on the dates listed.

33	And a little later they say:

“We therefore write to request that this matter be listed on the issue.  The strike out is a matter of extreme urgency.”

But Ms Sivanandan, far from complying with the orders that had been made, sought to have them set aside and to postpone the date for the full hearing.

34	The senior Employment Tribunal Chairman, once Ms Gay had been allocated to hear the full hearing, directed that she should hear all interlocutory matters and should do so on 15 August.  On 26 July the parties were so informed.

35	The Tribunal’s letter said:

“All outstanding interlocutory matters will be dealt with at the Directions Hearing on 15 August 2000.
The full merits hearing will not be postponed.  The hearing at the Employment Appeal Tribunal has already been accommodated.
All parties must continue their preparation for the case in the usual way.”

36	By 1 August Ms Sivanandan told the Respondents she would not be in a position to exchange witness statements in accordance with the Employment Tribunal’s order.  Enfield, on the other hand, was ready to exchange.

37	On 6 August Ms Sivanandan indicated that she was trying to obtain help from a law centre, that she expected her witness statement would occupy at least 50 pages and that she would shortly be seeking further to amend her claims, this time moving from unfair dismissal to, instead, wrongful dismissal.

38	On 10 August 2000 the North Lambeth Law Centre advised Ms Sivanandan that their decision as to how far, if at all, they would be able to assist her, would have to await the Interlocutory Hearing of 15 August.  They said:

“We will be in a better position to decide whether we can take on your case once we know the outcome of this hearing.”

39	The 15 August hearing went ahead.  The Tribunal later described it as follows:

(iv)	2000	“The Interlocutory Hearing was held on 15 August before this Tribunal.  Decisions and related documents were promulgated shortly thereafter.  The Applicant asserted that she sought postponement of the full hearing in part on grounds of ill health.  She recognised at that hearing that she did not have material which would support an application to postpone the full merits hearing on grounds of ill health and by consent her application to postpone was put over to the start of the full merits hearing.  Steps were taken to obtain relevant information.  The Applicant’s last application to amend was not reached and was also put over to 5 September.
The Applicant wrote to the Tribunal by letter received on 18 August to the effect that she was not well enough to carry out any preparatory work or to attend the 35 day hearing but that she would attend to apply to vacate the hearing and to deal with outstanding matters.  She enclosed a short letter from her general practitioner in support of her position.”

40	The order that was then made on 15 August says this:

“The Tribunal HEREBY ORDERS the parties to prepare witness statements from which their witnesses will read when giving evidence before the Tribunal at the hearing of this matter and that on or before 4pm on 25 August you will send to the parties copies of your witnesses’ statements as you intend to rely on them for evidence in chief before the hearing of this matter.

41	And again there was an endorsement that said:

1)	“Failure to comply with any order of the Tribunal may result in the Originating Application/Notice of Appearance being struck out in whole or in part before or at the hearing and the proceedings dismissed or the Respondent being debarred from defending altogether.”

42	In discussion on the 15 August, about medical evidence, the Employment Tribunal assisted in indicating the topics which it required to have addressed.  A letter was framed, largely, it would seem, by Ms Gay herself, but with input from the parties.  It said this:

“I write on the instructions of the Chairman, Ms V Gay, with consent of all the parties including your patient Natasha Sivanandan.  The Tribunal may be assisted if you could answer the following questions:-

1	Does Ms Sivanandan currently suffer from any medical condition diagnosed by you?  If yes, what condition?

2	Please explain (for non-medical people) the effect of this condition on Ms Sivanandan.  This request is made in the light of the fact that she is preparing for a Tribunal hearing which is scheduled to run for 35 days (spread over 2 full months) from 5 September 2000.  The Tribunal would intend to sit from 10am-11.30am; 11.45-1pm; 2pm-4pm daily (on weekdays).

3	What is your prognosis?  May Ms Sivanandan be fit to conduct this litigation?  If you consider this unlikely, please tell us the risks involved so that we can understand the position.

4	If the hearing date (i.e. 5 September 2000) has to be vacated it can only be listed many months, say 9-12 months later.  What can you tell us about the likelihood that Ms Sivanandan will become and remain fit enough to conduct considerable pre-hearing work and for an extended hearing (eg is it likely that the proximity of a later hearing date would provoke a relapse?)  It is thought appropriate that I should mention that Ms Sivanandan is also engaged in two smaller, effectively unconnected legal cases (one with legal representations) which will continue episodically.

Ms Sivanandan has agreed that you should reply to the Tribunal (marked confidential and for my attention) but you may also send her a copy of any reply.  I regret that I am unable to undertake to pay any fee in respect of this request for assistance.  In effect I am forwarding an agreed request to replace a letter which Ms Sivanandan told the Tribunal you were going to provide on Friday 18 August 2000 with one that specifically addresses issues of concern to the parties and the Tribunal.
Ms Gay has asked me to add that we would appreciate your response as soon as possible.”

43	Ms Sivanandan gave that letter, signed on behalf of the Regional Secretary of Tribunals, to her general practitioner, attached to her own letter which she wrote to the general practitioner which indicated, inter alia, this:

“I would be grateful if you could have a reply ready for me to collect from the surgery at your earliest convenience, or write a reply to Stratford Tribunal and copy the letter to myself.”

44	The expectation was thus that Ms Sivanandan would herself see the doctor’s answer either by collecting it from the surgery or by being sent a copy of it by the doctor.  On 16 August the doctor wrote a letter about Ms Sivanandan’s health but it did not attempt to answer the Employment Tribunal’s questions and it would seem, therefore, that it was a letter written before the doctor had received the Employment Tribunal’s letter.  It said this (it is partly typed, partly in longhand:

“The above patient of mine is due to attend a 7-week Tribunal on 5 September.  However, she is unfit to attend due to stress-related illnesses.  This ongoing Tribunal has resulted in her suffering from stress and anxiety.  This has led to her having an exacerbation of her migraine and suffering from insomnia.  As stated above she is unfit to attend the Tribunal.”

45	Then, switching into longhand, the letter continues:

“She is unfit to carry out any preparatory work for this Tribuneral [sic] case from today till the 5.9.00.”

46	It is signed by the doctor.  It leaves, of course, unanswered the Tribunal’s more focused questions but that, it would seem, was simply because it was not attempting to answer them and probably was written before even the Tribunal’s request had been received.
47	Ms Sivanandan sent that letter of the doctor to the Tribunal saying:

“I will be attending the 5th Sept ‘00 hearing to once again make my application to vacate the 5th Sept full merits hearing and to deal with all other outstanding matters that we were unable to deal with at the 15th August hearing.  Thank you.”

48	Then on 1 September the Tribunal received the doctor’s specific answers to the questions which the Employment Tribunal had raised.  Thus in answer to question 1 – does Ms Sivanandan currently suffer from any medical condition diagnosed by you, if yes what condition? – the answer is given:

1	“Ms Sivanandan suffers from migraine attacks.”

49	Question 2, which I will not repeat but which I have already read, was answered:

2	“This is greatly exacerbated by the stress she is currently under, which is also leading to her having insomnia.  When she is under stress she gets more frequent migraine attacks which leads to her having severe headaches with vomiting.  She has been prescribed medication for her migraine attacks.  During these attacks she is unable to do any work for her Tribunal hearing.  Because of her insomnia, she is feeling very tired during the day, making it more difficult to do any work for her Tribunal.”

50	In answer to question 3 that began ‘What is your prognosis?’ the answer now comes:

3	“At the moment I am unable to give you a prognosis.  Ms Sivanandan may in the future be fit to conduct this litigation.”

51	In question 4 the answer is:

4	“Unfortunately, I am again unable to comment on the likelihood Ms Sivanandan will become and remain fit enough to conduct suitable pre-hearing work and for an extended hearing at a later date, even if it was re-listed many months later.”

On 1 September the Tribunal directed that the case would remain in the list for 5 September.

52	No discovery had been received from Ms Sivanandan, nor any witness statement.  Thus on 5 September began what had been intended to be the full merits hearing fixed since 24 January 2000.

53	A number of decisions were made on 5 September, which was a Tuesday.  Firstly the Tribunal held that it had no jurisdiction to review its earlier decision of 15 August.  Secondly, further discovery in favour of the Respondents, to be provided by Ms Sivanandan, was refused.  Thirdly, Ms Sivanandan was directed to begin her oral evidence on 7 September, a Thursday, in other words after an intervening day, and that she could begin by reading what was understood to be 20 pages of prepared witness statement.

54	It was accepted that those 20 pages did not purport to cover the whole range of Ms Sivanandan’s evidence because she indicated, as I shall mention, that the whole witness statement would no doubt take some 50 pages at least; but she had prepared 20 pages.

55	In place of the order for discovery which the Respondent had sought, and to avoid surprise and adjournment on the production of documents, the Tribunal devised a regime and ordered that the Applicant was not to produce in the Tribunal or to seek to rely upon any document unless she had given a clear copy of it to the Respondents’ representatives at least 48 hours in advance of the time of which she intended to rely upon it and had produced also to the Tribunal clerk 3 copies of such documents, no later than 9.30 on the day on which she intended to use the document, so that the Tribunal and the Respondents would get some notice, albeit short notice, of documents on which Ms Sivanandan was intending to rely.

56	The Tribunal recognised that there were a whole number of applications before it.  In their paragraph 2 they said:

2	“At the commencement of the hearing the Tribunal identified the following issues and agreed them with the parties as having to be undertaken before we move to substantive issues:

(a)	the Applicant’s application to postpone;
(b)	the Applicant’s application for review;
(c)	an application notified by the Respondents to the Applicant by letter dated 1 September (copied in our bundle in re-printed form as dated 4 September) to strike out her claim;
(d)	the Applicant’s application to amend;
(e)	time-tabling of the hearing;
Thereafter we would intend to move on to:
(f)	agreeing the issues in the case, so as to ensure that all were aware of the necessary factual evidence and legal points during the course of the hearing;
(g)	evidence, followed by submissions.
The postponement application was, by agreement, taken first.  The Tribunal deliberated and notified its decision to the parties, with outline reasons.  The Applicant requested full, extended reasons urgently, in order to appeal and to join the appeal to that not presently expected to be heard on 13 October 2000.  In order to accommodate her, that was set in motion.  The decision refusing to postpone has therefore been sent separately.”

57	If the case were then to have been adjourned the Tribunal’s view, after making enquiries, was that the earliest that in practice it would be likely to come on would be of the order of a year later.

58	The Employment Tribunal’s decision not to adjourn, as is foreshadowed in the passage just cited, was given in a separate judgment.  It is now to be found at pages 574-582 of our present bundle and it has been unsuccessfully appealed to the Employment Appeal Tribunal but in the course of that unsuccessful appeal there was left aside the question of whether the Tribunal was biased against Ms Sivanandan.

59	That issue, the appeal as against the refusal of an adjournment, was decided in a judgment of the Employment Appeal Tribunal of 26 July 2001, now to be found at pages 477-485 of our present bundle.

60	The separate judgment of the Tribunal below of the adjournment issue was sent to the parties on 13 September.  It decided unanimously as follows:

“The unanimous decision of the Tribunal is that the application by the Applicant for a postponement of the full merits hearing listed to start today (5 September 2000) be refused.”

As we have said, there is no subsisting appeal to the Employment Appeal Tribunal against that decision

61	.  In the course of that judgment the Employment Tribunal dealt with the question of Ms Sivanandan’s health.  It devised a strategy to meet the problem.  Under the heading The Applicant’s Health (and this is not the whole of the sub-heading) the Tribunal said:

3	(iii)	“The Applicant’s general practitioner has been kind enough to respond with a letter of some substance (dated 29 August) which we have read with care.  We have also read and bear in mind a shorter letter from the GP dated 16 August, to the effect that the Applicant is unfit to do preparatory work or to attend the hearing.  That letter was written before our letter of the same date was received.  Both letters from the GP refer to stress, which has led to insomnia, and exacerbation of migraine in the form of headaches associated with vomiting.  No other physical or mental conditions are mentioned.  We accept that the Applicant suffers stress which, as she told us, at times causes her to be less effective or efficient than she would otherwise be.  We also accept that in addition to stress, or perhaps as part of it, the Applicant suffers insomnia and migraine headaches associated with vomiting.  The doctor does not explain, and we do not understand, how this could render her unfit to conduct a hearing when she is not actually having a headache, or perhaps immediately recovering from one.  Indeed, the GP specifically asserts (in the longer more precisely formulated letter) only that the Applicant is not fit to work on her case when having a migraine.  Insomnia, the GP asserts and we accept, leaves the Applicant feeling very tired so that it is “more difficult” to do work for the Tribunal.  We are concerned at the complete absence of a positive medical prognosis.  There is no medical evidence to the effect that while this case is hanging over her the Applicant will ever recover fully so as to be able to conduct it (or to be able consistently to do the preparatory work) in a state of sound good health.  The Applicant suggests, although her GP did not, given that clear period of a few months she will recover as, she tells us, she did in 1999 when the only matter which was really progressing in this case was the Employment Appeal Tribunal hearing.  However, we cannot be reassured by that, because having made that recovery (according to her) in 1999 she again considers herself unfit to proceed in 2000.  In other words, once this case resurfaces, on her own account the Applicant succumbs to ill-health again.  It is for this reason that we are compelled to the conclusion that there is no positive basis upon which we could think that the Appellant would recover sufficiently to be persuaded herself that she is well enough to conduct the hearing.  We bear in mind that the Applicant has mentioned that there is a possibility that Lambeth Law Centre will be able to assist her, but that they only received the papers yesterday.  This is entirely too speculative to be of assistance to us today.  We have determined that:-

(a)	the Applicant is clearly not a wholly fit or well person;
(b)	she suffers stress (leading to insomnia) and migraine attacks, associated with vomiting;
(c)	these conditions cause her at times to be tired and less effective or efficient than she would be otherwise and render it more difficult for her to prepare for and conduct her case than if she were fully fit or well;
(d)	she is wholly incapacitated from preparing for the hearing or conducting it during a migraine attack;
(e)	there is no basis on which we can conclude that the Applicant’s health problems are likely to improve, if we postpone the hearing, so that she will be more fit to present it at a later date.

The Tribunal concludes that the Applicant is fit to conduct the hearing (and has been fit to do the preparatory work) save when she is suffering a migraine attack.  We recognise that she is less than fully fit and we intend to ameliorate that disadvantage by having shorter than usual sessions, as we wrote to her general practitioner, namely by sitting from 10.00 until 11.30; 11.45 to 1.00 and 2.00 to 4.00.  If at any stage an additional adjournment is necessary for health reasons, the person or party affected should request an adjournment from us and it will be considered at that time.  We shall also extend to the Applicant the usual assistance which any Tribunal would offer to a litigant in person.

62	At the end of the judgment they say:

5	“The Tribunal’s primary concern is to provide a fair hearing for all the parties.  We are satisfied that that is more likely to occur if the hearing proceeds than if it is postponed.  For the reasons set out above we refuse the application to postpone this hearing.”

63	Of the issues which the Tribunal recognised were in front of it, it is that at 2(c)  in our paragraph 56 above that will most concern us, namely:

2	(c)	“An application notified by the Respondents to the Applicant by letter…to strike out her claim.”

64	I should have read out earlier, as part of the chronology or sequence that, by chance, a lay member, Mrs Elliot-Jones, had been involved in other Tribunal litigation by Ms Sivanandan, her case against HARE, and could speak of Ms Sivanandan’s conduct of the case.  She later said:

“Despite her insistence that she was unfit to attend this hearing or to do preparatory work, she was able to act as advocate on another race case and was willing to carry on her own case against HARE under the chairmanship of Mr Leonard, on which I was also a lay member.  When in July we were looking for dates to resume that hearing the Applicant asked why she could not use the dates reserved for herself – v – London Borough of Enfield as she would not be attending that.  Clearly, as far back as July she had no intention of progressing these matters any further.”

That was not hidden from the parties but was mentioned in open Tribunal and had, indeed, been asserted by Ms Bates, the Respondents’ solicitor.

65	On 5 September Mr Linden had not moved the application to strike out.  On that day his first approach was that the whole case ought to be adjourned as the Respondents had not had any sufficient indication of what was to be the Applicant’s case; no witness statement had been served; no adequate discovery had been made, so far as the Respondents viewed the matter.

66	But, whilst the Employment Tribunal was not unsympathetic it plainly wished to get on with the hearing if a fair system could be devised for that hearing.  Thus, to some extent repeating the judgment which we have already seen parts of dealing only with the question of adjournment, the Tribunal said in the judgment relating to the strike out as follows:

4	“At this stage of the proceedings Mr Linden, for all Respondents, indicated that he would not pursue an application for a strike out if, despite the Applicant’s failure to comply with any or all of the orders made by the Tribunal on the last occasion, it was still possible for there to be a fair hearing.”

67	A little later the Tribunal said:

4	“We considered that it was undesirable to adjourn and lose several days (as Mr Linden had proposed).  We thought further that it was undesirable to make orders with which the Applicant had indicated she would not comply.  Our experience to date was that the Applicant was prepared to move the case forward when she was actually present at the hearings, but that when she was not so present she did not do so.  Thus she failed to comply with orders requiring her to undertake work in her own time but was vociferous and active on her own behalf when attending a hearing.  We did not wish to be thought to encourage default in performance of Tribunal orders, but we were extremely keen, if it is at all possible, to ensure that there should be fair and orderly conduct of the hearing of the Applicant’s complaints as soon as possible.  We were absolutely certain that the best way forward was to continue with the hearing (in the absence of clear medical evidence to the contrary).  We considered that we had two options: we could prevent the Applicant giving evidence, by reason of her failure to comply with the Tribunal’s various orders in respect of witness statements, or we could hear her evidence orally and note it as it was given (in the old-fashioned manner).  We considered that it was most consonant with the interests of justice for the Applicant to be permitted to give evidence and that she should do it orally.

68	A little later they said:

4	“We were satisfied that prejudice could be minimised by clear identification of the issues involved in the claims and the adherence of all parties to the giving of evidence relevant to those issues.  We therefore:

(a)	direct that the Applicant will give evidence orally commencing at 10.00am on 7 September, save that she may if she wishes read the 20 pages of statement which she has told us were given to the Respondents and produced to the Tribunal at an early Interlocutory Hearing.  In line with what we have experienced from the Respondents in terms of their preparedness to assist the Applicant, Miss Bates (Solicitor for the Second and Third Respondents) has agreed to copy and produce to the Tribunal those 20 pages, together with the 72 documents which the Applicant tells us were attached to them.
(b)	As to the documents, the Tribunal makes no further order in respect of discovery save that in the interests of justice to all the parties the Applicant is not to produce in the Tribunal, or seek to rely on, any document unless she has given a clear copy of it to the Respondents’ representative no later than 48 hours before she seeks to rely on it and has provided three copies to the Tribunal clerk (two for the Employment Tribunal and one for the witness bundle) no later than 9.30am of the day upon which she intends to rely upon those documents.

For the avoidance of doubt, the Tribunal did not and does not revoke or revise the orders made on 15 August (sent in written form on 16 August).  Those orders remain and the Applicant is in breach of them, which may fall to be dealt with later.”

69	Already, at the close of 5 September, the Employment Tribunal was ill at ease with Ms Sivanandan’s conduct.  It said this:

5	(ii)	“During the first day of the hearing the Tribunal had observed that the Applicant was behaving in a manner which was not consistent with the proper administration of justice.  She was not simply discourteous but also rude.  Thus, for example, she arrived late and tendered no apology.  This we regard as mere discourtesy.  Beyond this, if the Tribunal indicated a decision, checked a point or did anything which the Applicant disliked, she audibly and loudly indicated her disagreement in a manner which we can best describe as ‘hmphing’ and /or snorting.  She did it frequently.  On 15 August, at the Interlocutory Hearing, the Applicant had repeatedly done the same when Miss Bates, then representing the Second and Third Respondents, was speaking.  The Tribunal had asked her to desist, indicating that such conduct was impolite and distracting.  The Applicant had thereafter desisted.  We found it regrettable both that there was a return of this conduct on 5 September and that it was now directed at the Tribunal.  In addition, the Applicant was on the first day insulting to and abusive of the Tribunal.  She shouted at us and asserted loudly that we did not understand and did not know certain things.  The Tribunal considered that such conduct was inappropriate: it showed disrespect, it tended to undermine the proper judicial authority and it interfered with the appropriate conduct of the proceedings.  We deliberated carefully, considering whether this was something which we had to put up with from a lay Applicant or whether it was better to indicate our concerns and expect her to improve.  The Tribunal felt unanimously (and the two lay members urged it particularly) that no Tribunal should have to put up with rudeness, inappropriate behaviour or undermining conduct, even from a stressed Applicant (as we accept this Applicant to be).  We considered this to be so in any event, but particularly where we were anticipating a protracted hearing.  In consequence, the Chairman indicated our concerns to the Applicant (as privately as possible) and asked that such conduct should cease.  Her response was not encouraging.  The Applicant:

(a)	told us that we could not expect her to be courteous after what she had been through;
(b)	objected to the Chairman’s use of the word ‘snorting’, saying that it was a cultural issue;
(c)	complained that the Respondents’ representative or representatives sniggered and that we did nothing about it;
(d)	asserted that accusing the Tribunal of ignorance was not rude, but merely a factual statement, since this was not the Tribunal which had conducted the earlier Interlocutory Hearings and it did not know what had happened;
(e)	objected to the Tribunal, through the Chairman, interrupting when she was addressing us.  She complained that she found this off-putting and not constructive.

70	On the evening of 5 September Ms Sivanandan went to see her GP.  Her GP did not furnish any letter or certificate there and then.  Ms Sivanandan, in the course of argument, has often told us what she says the doctor said to her and what she said to the doctor, but it is notable that no writing was then supplied by the doctor to Ms Sivanandan in order that it could be put before the Employment Tribunal the very next day.  So ended the 5th September.

71	The second day, 6 September, did not begin well.  The Tribunal said this:

(iv)	“The start of the second day was postponed by the Applicant’s late arrival.  She did not apologise but did later tell us that she had had a migraine the night before.  Even when present, the Applicant did not initially enter the Tribunal room and it subsequently transpired that an incident had occurred in the public corridor, to which we will return later.  At the start of the day the Applicant was invited to indicate if she wished to pursue her application to amend.  She informed the Tribunal that she wished first to tell us more about her physical condition and we agreed that she should.  Apart from mentioning the migraine, the Applicant listed a series of medical conditions which were not named by her general practitioner as current medical problems, although we recognised that some had previously been set out in sick certificates or the Applicant’s letters.  The Applicant began calmly but appeared to be carried away and came to abuse the Tribunal for ignoring these matters.  The Chairman’s reminder that the letter from the GP, which had just been obtained in an attempt to resolve the ill health/postponement application, had not mentioned any of the matters which the Applicant now raised (asthma, depression, carpal tunnel syndrome and the side-effects of medication for some of them) produced a tirade against the Tribunal which continued over the Chairman’s first attempts to stop it.  In the pause that was achieved, the Chairman asked what the Applicant wished us to do.  Once again the Applicant began calmly, but then appeared to continue uncontrolled.  She did tell us that she had visited her GP the night before and that the GP would send a letter, as also would her counsellor, but that they would not be with us for two days.  At this point the Chairman informed the Applicant that she had learned from a clerk that the GP was attempting to contact the Tribunal by telephone.  The Chairman had directed that any such contact should be by way of fax so that there was a clear written record, and now asked the Applicant whether she (the Chairman) had the Applicant’s permission to respond to the GP.  This produced an outburst in which the Applicant forbade the Tribunal from communicating with her GP because she had no faith in the Tribunal.  The Tribunal determined to adjourn to reflect upon the way forward.

(v)	During the adjournment we learned that the Applicant had been so rude to our clerk in the corridor at approximately 10.15 that the clerk had been reduced to tears.  There had been no apology and the clerk had asked to be relieved from clerking the case henceforth.  We realise that this was what the Applicant had mentioned to us early on, again without an apology.  She had said: “I am so stressed I was even rude to your clerk, who has always been courteous to me”.”

72	There are disputes of fact as to the events of the 6 September, such as whether Ms Sivanandan said that she was then having a current migraine attack or alternatively that she had had one.  Another issue was the nature of the incident that involved the Employment Tribunal’s clerk, which has so far only been touched upon, and whether Ms Sivanandan had apologised (either to the clerk or the Tribunal) in relation to that incident.

73	The way forward chosen by the Tribunal was to hear the strike-out application.  Their reasoning was as follows:

(vi)	“The Tribunal reasoned as follows.  The Applicant was present and apparently fit to continue.  We saw the following possibilities.  First, we could consider afresh whether the case should be postponed on grounds of the Applicant’s ill health.  That is, not review our earlier decision but consider it in the light of new medical evidence.  We determined that there was no point in attempting to do that at this stage because there was no new medical evidence and no hope of the Tribunal obtaining it speedily by contacting the GP, since the Applicant had forbidden the Tribunal to do so.  If there were new evidence, there could be a fresh decision.  In the absence of such evidence, this was an inappropriate course.  We had recently (the day before) made a decision having regard to contemporaneous material and did not wish to nullify the effect of that decision.  Second, we could attempt to continue with the hearing.  Third, we could consider the strike out application, which the Respondents have indicated they would wish to make if circumstances became such that the prospect of a fair trial appeared to recede.  The Tribunal concluded that, on balance the time had come when it should hear the strike out application.

(vii)	The Tribunal called the parties back and notified them that it wished to consider a strike out application under Rule 13(2)(e).  It intended to hear the Respondents (if Mr Linden were ready) and therefore to grant an adjournment, if required, for the Applicant to prepare her response.  When the Applicant was ready, we would hear her and then deliberate.

74	Until this stage the Respondents had not indicated that they would actually move their strike out application.  The Chairman’s note on this point says this:

 “It is correct that Mr Linden mentioned, on at least a couple of occasions, that there was an outstanding strike out application without making the application.  He did so:

-	near the start of the second hearing to alert the Tribunal that although he did not insist on making it first it was still an application which he reserved the right to make.  For example, if the postponement application were granted

-	in the afternoon when the Tribunal was determining with the parties the order of events thereafter, he did this because the strike out application could have been affected by any positive outcome to the review application which Ms Sivanandan intended to make.  
He did not talk about the strike out application at length.  It is correct that I sought to discourage him from making the application because the Tribunal felt that the better cause, if at all possible, was for the case to proceed to the full merits hearing rather than for it to be struck out.  On each occasion Mr Linden was proposing that the issues raised by Ms Sivanandan should be dealt with first if she agreed.  Therefore, the Tribunal did not hear the Respondents’ arguments in respect of the strike out on 5 September.  Something similar happened again early on the morning of the 6th, when I intervened to stop Mr Linden saying any more unless he was seeking to make the application then, which he confirmed he was not.”

75	But the right to move a strike out been abandoned.  The Tribunal Chairman’s notes later said this:

“I, for the Tribunal, merely confirmed to the Respondents that the Tribunal did not consider that he had foregone the right to make a strike out application (which logically ought to be done as soon as possible in proceedings) by permitting the applications of Ms Sivanandan in respect of postponement and review first.  If they were unsuccessful, he could still pursue the strike out application.  This was not an encouragement, but merely an acknowledgement that some batting order had to be agreed.”

76	At this point, on 6 September, Ms Sivanandan rather changed tack on the medical side of things.  The Tribunal said this:

(viii)	“The Applicant’s conduct at this stage was reasonably calm.  She intervened before Mr Linden could commence and said that she had now reconsidered (having spoken to Mr Gordon, her friend) and felt that it would be helpful if the Tribunal did speak to her GP.  She then went on to tell us what the GP meant by the question which the clerk had reported her to have put.  The Chairman attempted to stop the Applicant on this point, indicating that only the GP should properly explain what she (the GP) meant.  The Applicant persisted and sought to expand generally about what lay people would understand to have happened.  The Chairman indicated that she expected the Respondents to continue and the Applicant intervened, asking aggressively: “Do you refuse to speak to the GP?”  The Chairman replied that this was a matter for the whole Tribunal to consider in due course and invited Mr Linden to proceed.”

77	The strike out therefore went ahead.  Referring to Mr Linden, the Tribunal continued:

(viii)	Since he was making express reference to certain rules, we asked him to share his copy of Butterworths Employment Law Statutes with the Applicant (as he had done yesterday), because she did not have a copy of the rules on her desk.  The Respondents’ representative attempted to share his book and the Applicant ignored him, turning away.  He continued with his submission.  Then the Applicant indicated that she felt that she was going to ‘throw up’ and ran out of the room.  The Tribunal adjourned and caused a first-aider to attend the Applicant.
(ix)	More than half an hour later the Tribunal was notified by the first-aider that the Applicant had returned to the waiting room.  We attempted to resume, but the Applicant did not come into the Tribunal.  Mr Gordon said that she had authorised him to say that her GP had told her not to return, that she intended to visit the GP the next morning and that we might receive a fax from the GP by the evening of 7 September.  He then left.  Mr Linden, for the Respondents, urged that the proper course was for the hearing to proceed.  The Tribunal adjourned to ask the Applicant if she would return if we adjourned for an hour or two.  The Applicant indicated through our clerk that she would not return to the Tribunal.  The Tribunal again considered what it should do.
(x)	We accepted that the Applicant had been unwell the previous night, but we noted that she had been fit enough to attend in the morning and had remained so while having her say on various matters.  Her abrupt departure had come when it was clear that:
	(a)	the Tribunal was not immediately about to do that which she now wished (namely to speak to her GP) and;
	(b)	Mr Linden was starting to make the Respondents’ strike out application.
(x)	The Tribunal was not satisfied that the Applicant was actually fit to continue.  As we already indicated in respect of the postponement request, we did not regard her as being fully fit but had not accepted that she was incapacitated.  The Lay Members in particular felt that an incident which had occurred on the first day was histrionic and theatrical.  The Applicant, who had been addressing us with vigour, had suddenly placed her head on the desk as Mr Linden had was attempting to make submissions in reply.  She did not collapse suddenly but rather appeared to be making some kind of peaceful protest or objection.  When she did not rise the Chairman interrupted Mr Linden and asked the Applicant if she was alright.  The Applicant sat up, said she was having a dizzy spell and added that she would be fine if she could place her head between her knees.  She bent over and did so.  During this interval the Chairman telephoned for a clerk with first aid expertise.  By the time she arrived a few moments later the Applicant had announced her recovery and we had resumed.  The Tribunal decided to adjourn for a few minutes for the Applicant to consult the first aider.  When we reconvened the Applicant told us she was fine and had just had a dizzy spell, to which she was prone.  We were unsure whether this was really the case: its nature and timing appeared rather to be an attempt to interrupt Mr Linden.  Now there was a repetition of this conduct.  The Tribunal was satisfied that, if the GP had indeed advised the Applicant not to return to the Tribunal, that could only be because of what the Applicant had said to the GP on the telephone and we had no confidence that what the Applicant had said reflected the real position.  We considered whether it would be appropriate to await the outcome of the GP visit by adjourning for a couple of days.  We determined that it would not.  We had an up-to-date, contemporaneous, full medical report (dated 29 August as extensively referred to in our postponement decision).  We also had the benefit of having observed the Applicant over a total approaching 3 days, including 15 August 2000.  This included noting her reaction to and behaviour in the face of decisions adverse to her or decisions perceived to be adverse.  Very shortly before the present incident, we had offered the Applicant an adjournment which she had declined (in connection with rebutting Mr Linden’s submissions on her review application).  It appeared to the Tribunal that the Applicant’s absence was an attempt to disrupt the proceedings, all other attempts by permissible reasons (application for postponement; application for review) having failed.  We were strengthened in this opinion because of a matter which was mentioned in open Tribunal on 15 August, namely that when in July another case brought by the Applicant before a Stratford Tribunal had to be adjourned, the Applicant volunteered in open Tribunal that she would be able to return in that case to a Tribunal hearing in September and October, because this case (i.e. the present case) would not go ahead.  The Tribunal feels it is legitimate to bear this in mind because it is something known to the Tribunal through Mrs Elliot-Jones, who was a Member on that earlier occasion, and it was relied upon by Miss Bates at our August hearing.  Of our own observation we were satisfied that the Applicant at this stage was voluntarily and wilfully absenting herself and that the proper course was for us to continue.  Through our clerk, we notified our parties that we were resuming.  The Respondents returned and the clerk informed us that the Applicant and her friend were leaving the building.”

78	The strike out application, having begun in Miss Sivanandan’s presence, continued in her absence.  Mr Linden argued the case for a strike out.  There were a number of points that he made.

79	The Tribunal said:

6	(ii)	(a)	“Mr Linden then reminded the Tribunal in outline of the interlocutory history of this case, referring to what he described as deliberate breaches of clear directions or orders made by the Tribunal and submitting that the Applicant had received enormous indulgence from the Tribunal and from the Respondents in order to enable the case to progress this far.”

80	A little later he said that:

“there was a clear breach of Rule 4(7) in the failure to provide discovery, but that he had considered initially that it was still just possible to have a fair trial.  Now, having greater experience of the Applicant, he recognised that that was wildly optimistic.  He relied in part upon the failure of the Applicant without explanation to avail herself of the assistance offered by the Respondents in respect of giving discovery.
81	Later he said:

6	(ii)	(b)	“Nor was there any explanation or excuse for the Applicant’s failure to respond to the order in respect of the witness statement.  She had not appealed the order made in February, by Mr Barry’s Tribunal, for exchange on 1 August.  She had done nothing at all in response to the order made on 15 August.  She asserted she was unfit but that was not supported by the medical evidence even though it had been made absolutely clear to the Appellant (by letters from the Tribunal in June and at the last hearing) that reliable medical evidence was needed to support her claims.  In addition, it appeared that the Tribunal had, by letter dated 16 June, demonstrated a justifiable scepticism about the degree of lack of fitness in the Appellant, given that she was claiming to be wholly incapacitated from Tribunal work but was yet voluntarily appearing as a friend in another case – as well as representing herself in her other case.

(c)	Despite the Tribunal’s huge indulgences, the Applicant was in reality abusing the system: she was not complying with orders; she ranted at the Tribunal; she made allegations of bias against all who made any direction or order against her – or any which she thought was against her (as had occurred on 15 August when the Tribunal determined a point in the Applicant’s favour without hearing her).

82	A little later the Tribunal said this of what Mr Linden had submitted:

6	(iii)	“Mr Linden submitted that the Applicant had been rude to the Tribunal clerk and gave an account, which was in accord with the note which the clerk, who had now been relieved, had put on the Tribunal file.

83	Under the heading Conduct in respect of the Tribunal Mr Linden was held to have submitted as follows:

6	(iv)	“…that the Applicant ignored the guidance of the Tribunal, properly given, so that every point was returned to time and again, even after the decision had been given.  Every point was questioned and allegations were made against the Tribunal, sometimes by the Applicant shouting at the Tribunal, even though it was quite clear, because she sometimes demonstrated it, that the Applicant was capable of proper conduct.  She turned her good conduct/bad conduct on and off at whim.

84	The Tribunal then set out their own reasoning.  They said:

7.1	“We considered the wording of Rule 13(2)(e).  We were satisfied that we were really concerned with whether there had been an abuse of process by the manner in which proceedings have been conducted by the Applicant.  The conduct of the Applicant would only entitle us to dismiss under this head if it were scandalous, frivolous or vexatious.  We considered that ‘scandalous’ means, or at least includes, behaviour which is outrageous; that ‘frivolous’ includes conduct which is foolish or disrespectful; that ‘vexatious’ means deliberate or calculated to cause annoyance/obstruction of the proper conduct of proceedings.  If such conduct is found to have occurred, the Tribunal must then consider how to exercise the discretion which the rule gives, namely whether or not to strike out.”

The conclusion of Mr Linden’s argument had been that the Tribunal should hold that the Applicant was deliberately intending to derail the proceedings.

85	Having set out that interpretation of “scandalous, frivolous or vexatious” the Tribunal then examined three separate headings which it gave itself.  The first was “Failure to comply with order to provide a witness statement”.  Under this heading the Tribunal said this:

7.2	(i)	“The order made by Mr Barry’s Tribunal was for the provision of a statement by 1 August: the order made by this Tribunal on 15 August was for the provision of a statement by 25 August.  Although she specifically agrees that a witness statement is necessary and that exchange in advance of the hearing is appropriate, the Applicant has failed to produce or make any progress in respect of the production of a witness statement since she drafted some 20 pages and relied on them at an Interlocutory Hearing some two years ago.  She has submitted in respect of this that the reason for non-compliance is that she is or has been unwell.  The Tribunal has not heard of any prolonged period of total incapacity which would have caused the Applicant to be unable to do any preparation and indeed there is no ‘period’ of incapacity at all that we know of, apart from when she is suffering migraines.  Some of the certificates sent to this Tribunal might appear to indicate total incapacity, but in the light of the GP’s letter dated 29 August we are satisfied that they do not in fact do so.  We are confirmed in this opinion by what we know of the Applicant’s attendance in respect of other cases.

The Applicant told us at one stage that she cannot prepare a witness statement until she has all the Respondents’ documents.  The Respondents have given full discovery in accordance with the orders directed at them and have mostly done so many months or even years ago.”

86	The Tribunal took notice of this; they said:

7.2	(i)	“The Tribunal is satisfied that the failure to provide any witness statement is a wilful failure, the effect of which has been to reduce the prospects of a fair trial for the Respondents.  This is all the more so because there has been:

(a)	no detailed particularisation of her claim by the Applicant;
(b)	no discovery by the Applicant, apart from documents which she has produced ad hoc at various interlocutory hearings.

87	A little later the Tribunal says:

7.2	(i)	“The Tribunal had thought that all of this could be ameliorated by adjournments and by consideration of a costs award if appropriate, but even so the process of dealing with the Applicant’s oral evidence would have required the full and proper co-operation of the Applicant.  Events have persuaded us, as set out below, that there is no basis upon which we can reasonably believe that we will obtain such co-operation.  We have therefore determined that it is appropriate to re-visit the Applicant’s failure to comply with our order in respect of a witness statement.  That order has not been appealed, cannot be reviewed and has not been complied with.  We concluded that the Applicant simply ignored our order and that that of itself constitutes vexatious conduct.
88	That was the first of their three headings, the second was “Rudeness/abuse to Employment Tribunal staff” and here the Tribunal began as follows:

7.2	(ii)	(a)	“The Tribunal first heard from the Applicant about this, as recorded above.  Subsequently, our clerk explained that by reason of the incident she had asked to be relieved from clerking the case henceforth.  This clerk is a mild, gentle woman from an ethnic minority background who has been employed for some time and who has never previously, to the Tribunal’s knowledge, been so offended that she requested to be removed from a case.  The Tribunal asked the clerk to make a note of the incident for the file and subsequently heard the Respondents’ representative’s account of the incident.

89	That, of course, was an event of 6 September, and the Tribunal said:

7.2	(ii)	(c)	“We are satisfied that the Applicant’s conduct to our clerk in Tribunal time, albeit outside the Tribunal room, was scandalous conduct within the meaning of Rule 13(2)(e).  We are satisfied that it was conduct in the course of the conduct of the proceedings, since it related to the giving of names of representatives/parties etc. to the Tribunal clerk, something which has to be done before the hearing commences for the day.

90	Then the Tribunal turned to their third heading which was “The Applicant’s conduct at the hearing”.  After a careful examination the Tribunal held:

7.2	(iii)	(d)	“We are satisfied that the Applicant’s conduct in the course of the hearing was frivolous (disrespectful), vexatious (deliberate/calculated to obstruct) and on occasions scandalous (outrageous).  It prolonged even the most straightforward issue and was obstructive of the orderly conduct of the judicial process.  She was not exonerated or exculpated by her relative ill health.”

91	They turned then to their reasoning on the strike out issue.  They said:

8	“The Tribunal has only considered the strike out application under Rule 13(2)(e).  We have put out of our minds that the Applicant has accused us of bias and race discrimination.  We have asked ourselves whether the totality of the Applicant’s conduct, as set out above, was such as should cause us to exercise the discretion to strike out these proceedings.  We have concluded that it was.  The Applicant has demonstrated that she will not adhere to the rules or requirements of the legal process, even though they were very considerably bent or relaxed to accommodate her.  It appears that she is only prepared to co-operate when she is, or feels she is, winning each point.  The Lay Members likened this to the Applicant running the Tribunal.  Her conduct is wholly inappropriate and unfair to the Respondents.  Individually each of the three matters which has influenced the Tribunal (lack of a witness statement, rudeness to the clerk and misconduct in the hearing) might have been overcome, but their totality or combination, and the Applicant’ response to each must also be taken into account.  The effect is that the Tribunal is satisfied that the Applicant has obstructed or abused the process to such an extent that there is no reasonable prospect of an orderly hearing along normal lines or any other lines which are fair to the Respondents (as well as to the Applicant).  In these circumstances it is proper that we should exercise our discretion to strike out these proceedings on the basis that the conduct has been scandalous, frivolous or vexatious.  We do so.”

92	On 22 September 2000 the decision was sent to the parties.  On 2 November 2000 a Notice of Appeal was received.  It is far from short.  It accused the Tribunal of, amongst other things, bias. Ground (v) and (vi) said:

(v)		“The decisions and the conduct of the hearing was indicative of bias against myself.
(vi)	The decisions and the conduct of the hearing was indicative of bias and/or discrimination against myself as a black female litigant in person and contrary to the guidance issued by the former President of the EAT in Tchoula v Netto Foodstores.  In particular, the written decision contains unnecessary and unwarranted criticisms of my character and unsupported allegations about my motivation, (such as page 11, paragraph (iii) and page 13, last paragraph), and the clear accusation that I was simply pretending to be ill, an assumption and prejudice which was clearly contradicted by the medical evidence available.

93	It asserted that Ms Sivanandan was suffering from a migraine attack on 6 September and not that she had simply had an attack the night before and, moreover, that she had told the Employment Tribunal that that was the case.

94	Since the Notice of Appeal, and because that it is the practice where bias and prejudice is alleged, evidence has been collected.  There are long affidavits from Ms Sivanandan and from Mr James Gordon, a friend of Ms Sivanandan.  We have notes of the evidence (contemporary notes) and of argument on 5 September and 6 September by the Respondents’ solicitor and, in part, by Ms Sivanandan and also by Mr Gordon.

95	We have extensive notes in reply to Ms Sivanandan’s and Mr Gordon’s affidavits from Ms V K Gay and comments also from the two Lay Members.  Of the two Lay Members, Sue Elliot Jones says this:

“Applicant is a well presented and obviously intelligent lady.

Very co-operative and amicable when things “going her way” but becomes aggressive and hysterical when facing opposition.  Like a spoilt child in a tantrum.  Dramatist.

It is very difficult to pin her down to any issues needing deliberation.  She strays off the point and takes up an incredible amount of time with unrelated facts.  When the Chairman tries to intervene in order to clarify a point and to prevent the Applicant drifting off at a tangent this is met with sighs, smirks, shrugs or sometimes open hostility, as indeed it does when the Respondents make a point she does not agree with.”

96	And a little later:

6	“When we attempted to check or control her, we were accused of mistreating her because she was black and a litigant in person.

97	Mr Derek Horn, the other Lay Member of the Tribunal at the time, says, of help offered to Ms Sivanandan:

“This help was treated with hostility by the Applicant.  She refused to stay with the issues and introduced a variety of “red herrings” and became almost hysterical when the Chairman sought to focus on the salient points.

Ms Sivanandan demanded constant attention.  She interrupted the Respondents’ Counsel on numerous occasions not only with objections (not warranted) but with a variety of snorts, laughter, sighs of incredulity, and the loud moving of objects in front of her.  She also demanded attention from Tribunal staff (telephones; faxing; photocopying).”

98	A little later:

“Ms Sivanandan is an extremely intelligent woman.  She did attempt to manipulate and bully the Tribunal, and, I believe, with a less able Chairman she may have succeeded and justice would not have been served.”

99	By contrast, Ms Sivanandan and Mr Gordon paint a picture of repeated interference and hostility, either by the Chairman, Ms Gay, or by one or more Lay Members of the Employment Tribunal and of obvious bias on their part.  There are straight conflicts of fact.

100	An important one is the issue of migraine, or not, on 6 September.  Mr Gordon says:

35	“Ms Sivanandan apologised for her late arrival, and said she was ill, had a migraine and was so stressed that she had even been rude to the Tribunal clerk.”

101	Ms Sivanandan says in her paragraph 78:

78	“…my current migraine…”

in terms which plainly suggest that she had actually mentioned it as current on 6 September.

102	By contrast, the Chairman’s note says:

“When Ms Sivanandan appeared she did not seem to be upset and she was not incoherent.  The Tribunal did not miss anything which she said.  She did not apologise to the clerk when in the Tribunal.  Nor did she, as Mr Gordon says at paragraph 34 of his affidavit, mention that she had a continuing migraine.  Rather, she said that she had had a bad migraine the night before.  For the avoidance of doubt, no-one told the Tribunal at any stage during the course of 6 September that Ms Sivanandan was suffering from migraine – even though Ms Sivanandan took some 15 minutes at the start of the hearing to address us on her health problems.

103	A little later she says:

“We did not know that Ms Sivanandan had a migraine on 6 September.  She had specifically said that she had had one the night before.  It was put in the past tense.  She did not at any time tell us that it was continuing on the 6th.  We did not know that she had vomited, although she certainly told us that she was going to throw up and left the room.  Mr Gordon did not tell us that Ms Sivanandan had vomited and he did not tell us that he had spoken to the GP.  He told us that the Applicant had.  We worked at all times on the basis of the material (documentary and oral) which we had.

104	The Respondents’ solicitors’ notes say this, attributing this to Ms Sivanandan on 6 September:

VG		“Are you making an application to amend?”

NS	“I intend, if physically fit enough.  I want permission to tell you about my physical condition.  I went to the doctor yesterday.  I had an emergency appointment.  They are going to write another letter as is my counsellor.  I had a very bad migraine.  I couldn’t carry my bag.  I am on anti-depressants which give me side effects.  GP’s letter is wholly inadequate.  Another letter as soon as they can type.  It is clear that you are aware of the time of the time registered disabled person from file.” [sic]

105	Mr Gordon’s note says this, of the very same passage of words said by Ms Sivanandan:

NS	“If I am physically fit to carry on, I would like your permission to tell you about my physical condition.  (Chair of the Tribunal indicated NS should proceed…).  I went to the doctor yesterday evening.  They will write another letter as will my counsellor.  I have a bad migraine, and I can’t carry my bags.  I am on anti-depression tablets which give me side effects.  My GP did not understand that this Tribunal was going to go ahead in spite of her letter.”

106	That, I hope, is the end of a very long introduction to the foreground of the case.  As for a real possibility of bias in the Tribunal against Ms Sivanandan; although there are conflicts in the evidence (some of which we have indicated) and which would probably not be capable of resolution short of cross-examination, we see it as not-impracticable to judge the likelihood of bias in the Tribunal by its actions.

107	Without error of law (given that the appeal on that issue was dismissed) the Tribunal declined to adjourn the case on 5 September.  They failed, in other words, to adjourn a substantive hearing that had been fixed since January 2000 and which had hung over a number of individual parties for, literally, years.

108	If deeds speak louder than words, there is nothing in that declining of an adjournment that is, in our view, indicative of bias.  Then the Tribunal refused an order for discovery in the Respondents’ favour, which, again, is hardly is indicative of bias in their favour.

109	The Tribunal then declined to review the decision of 15 August, but did so on a point of jurisdiction; there was no error of law in that conclusion and, again, nothing about it that seems indicative of bias.  It was very simply on a question of jurisdiction.

110	Then a technique or regime was carefully devised to overcome Ms Sivanandan’s failure to supply discovery and a witness statement, despite the earlier Orders requiring that she should.

111	Given the endorsement on the Orders made earlier, a stern Employment Tribunal, let alone one biased against Ms Sivanandan, could well have moved directly to a strike out for a wilful failure to obey Orders of the Tribunal.  Instead, this Tribunal generously devised and provided a scheme for a part-witness-statement already written (but accepted as not covering the whole of her evidence) to be used and for the rest of her evidence to be given orally, not in any predisclosed manner but emerging orally for the first time as she gave it.  That was an indulgence to Ms Sivanandan and a plain disadvantage to the Respondents.  Equally, the Tribunal devised a system under which undisclosed documents could be used by Ms Sivanandan if a brief but possibly adequate warning or time interval was given.

112	The Tribunal carefully specified lightened sitting hours: 10.00 to 11.30; 11.45 to 1.00; 2.00-4.00, with an anxious recognition also of the possible need for adjournments for health reasons.

113	All in all, judging the Tribunal from its actions, we see no indication of bias in the Tribunal as against Ms Sivanandan.  In practical terms, the Tribunal, by its conduct, refutes the charge.  We do not conclude that there was bias in this Tribunal, as against Ms Sivanandan, be it racial discrimination, sex discrimination or, indeed, disability discrimination.
114	When, in the course of argument, we raised with Ms Sivanandan that the regime devised for the hearing of the case below was designed to help her and contained indulgences in her favour, her response was that Ms Gay, the Chairman, was simply building a case in order that Ms Sivanandan’s case could then be struck out.  The Tribunal, she said, was clear that she could not comply.  That, she said, had been clear as far back as 18 August.

115	We do not subscribe for a moment to that cynical interpretation.  We have no reason to believe that the regime was other than what it purported to be, namely a practical way of proceeding to a hearing that was as close as the Tribunal could get to being fair to both sides.  It is interesting, though, that if Ms Sivanandan was clear in her own mind from 18 August that she would not be able to proceed with the substantive hearing in September 2000 and that the Employment Tribunal clearly knew that, it would have been especially important to her to get her medical evidence in the best possible shape well before 5 September 2000.

116	We see no error of law in the Tribunal proceeding as if there was no migraine attack actually current on 6 September.  If Ms Sivanandan had said that she had a migraine that day the message plainly did not get through to the Employment Tribunal.  It will be remembered that the Tribunal had recognised that during a migraine attack Ms Sivanandan was “wholly incapacitated” from conducting a hearing.  It is ludicrous to suppose that the Employment Tribunal would have persisted with a hearing during a spell when, on its own reasoning, the party was wholly incapacitated.

117	There were, as we have mentioned, grounds for scepticism as to the true medical position because of what had been said or observed in the other cases.  There were grounds for scepticism also because of the failure of the general practitioner to give clear, relevant material to the Employment Tribunal in answer to its questions.  The Employment Tribunal had, at first and, as we would see it, somewhat dangerously, been willing to help by speaking to the general practitioner when she telephoned, but that course was refused at first by Ms Sivanandan.

118	It also was observed that when Ms Sivanandan attempted to give her own evidence of her own medical condition it was, compared with such medical material the Tribunal had, of what seemed to be an exaggerated list of medical conditions.

119	Ms Sivanandan was asserting, as she put it to us, that there was no way she could conduct a 35 day case and that it would put her life in jeopardy if she had to do so.  The doctor’s detailed letter provided no support for that latter view and the Tribunal had formulated a gentle regime to accommodate her, to facilitate the conduct of a long case by a litigant in person.  We should add that, as at 6 September there was no evidence of any better prospect of Ms Sivanandan obtaining professional legal support than there had been in August 2000.

120	The Tribunal, on the material it had on 6 September, which included its own observations, cannot, in our view, be said to have erred in law in going forward with the hearing and in treating Ms Sivanandan as not justified in absenting herself altogether.  Indeed, Ms Sivanandan herself asserts the inadequacy of the doctor’s letter given in answer to the Employment Tribunal’s request for information.  She says to us:

“I accepted it was an inadequate letter.  I was shocked by it.

121	She adds, although there is no evidence of this, that it was written in haste by the doctor and without reference to Ms Sivanandan’s own medical records.  But the doctor had not said that she had not had sufficient time to report or that the report was incomplete.  The Employment Tribunal was entitled to treat it as a considered answer to a detailed request, a request made by a Tribunal seeking to find what the true medical position was.

122	But, in any event, Ms Sivanandan’s reaction to the medical position is far from constant.  Having said that she accepts that the detailed answer was inadequate, she also berated the Employment Tribunal below for being foolish in thinking that they knew her health better than did her own general practitioner.

123	In the light of the most detailed response of the GP it was open to the Employment Tribunal to conclude that, with a lightened plan for sitting hours and with a regime alive to the risk of adjournments during any migraine attack or on other health grounds, the case could not unfairly proceed.

124	Indeed, in the absence of any clear prognosis, that was probably the only way of arranging that the Originating Application should be justiciable in a way not more unfair to the Respondents, over whom it had been hanging for years.  It was certainly not indicative of racial discrimination, as Ms Sivanandan alleged, for the Tribunal to have relied on the doctor’s full letter in the way that it did.

125	As for whether Ms Sivanandan’s conduct of the proceedings could fairly be described by any one or more of the words “scandalous, frivolous or vexatious” in Rule 13(2)(e) (as it then was under 1993 Rules) the Lay Members of the Employment Tribunal have thoroughly supported the Chairman’s careful decision and her notes.
126	It may be debated whether the Employment Tribunal’s definitions or inclusive meanings of the words “scandalous, frivolous and vexatious”, are all completely apt, but all contain elements of what the Rule is truly designed to avoid, which is serious abuse of process.  The Employment Tribunal, incontestably, is the best judge of the conduct of the parties before it.  We can only intervene if we see error of law.

127	Ms Sivanandan asks why should she have behaved scandalously, frivolously or vexatiously on 6 September when she had never done so before and when it would plainly jeopardise the future of proceedings in which she had invested so much effort and worry?  But if she did, as the Tribunal held, behave offensively, as they described, on 5 and 6 September, Ms Sivanandan cannot escape consequences by posing a question as to motives.

128	In any case, it may be that having failed to obtain her greatly desired adjournment on grounds of actual medical evidence adduced on 5 September there was, consciously or unconsciously, an attempt by Ms Sivanandan on 6 September to obtain one by a more extreme demonstration of apparent ill health.

129	Possible motives, in effect, provide no answer, as one can speculate those which harm Ms Sivanandan with as much foundation or as little foundation as those which would assist her.
  We see no error of law in the Tribunal’s formulation of what is scandalous, frivolous or vexatious, nor in the Tribunal’s conclusion that Ms Sivanandan’s conduct of the proceedings fell into one or more of such descriptions.

130	However, we now turn to the area that has caused us the most concern.  First we turn to Rule 13(2)(e) of the 1993 Rules.  13(2) begins:

13	(2)	“A Tribunal may – …

(e)	subject to paragraph (3), at any stage of the proceedings, order to be struck out any Originating Application or Notice of Appearance, or anything in such Application or Notice of Appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Appellant or, as the case may be, Respondent has been scandalous, frivolous or vexatious.”

131	13(3) says:

13	(3)	“Before making an order under sub-paragraph (d), (e) or (f) of paragraph (2) the Tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made: but this paragraph shall not be taken to require the Tribunal to send such notice to that party if the part has been given opportunity to show cause orally why the order should not be made.

132	The 1993 form of 13(2)(e) does not make a written prior notice mandatory, either from the Employment Tribunal (compare 1993 Rule 4(7)) or from the Applicant who is seeking the strike out.

133	We have not been taken to authorities as to the expression “an opportunity to show cause” under this Rule, be it in connection with a written notice or an oral indication.  But it has to be borne in mind that to strike out is a Draconian sanction.  The whole case is lost without the merits ever being considered.

134	The opportunity given to a Respondent to a strike out to resist must be proportionate to the seriousness of that sanction.  One would not expect a written notice sent by post to give to a Respondent less than adequate time to prepare his or her defence.  A fair opportunity would need to be given to the Respondent to the application to prepare his case.  Moreover, in order to prepare a defence, the Respondent to the application needs, if only in outline, to be given a clear indication of upon what it is that the Applicant to the strike out is intending to rely.

135	The Rules stipulate no minimum interval of time, nor do they expressly require a statement of the grounds to be relied upon.  So, by implication, one has to read in that a reasonable length of notice is to be given and, as we would see it, save where the nature of the grounds is plain and obvious, a sufficient indication of the grounds to be relied on to give the Respondent fair opportunity to collect his or her response.  It is impossible to see why an oral notice or indication should be of any shorter period or any less specific than would be adequate for a written notice.

136	Here there had, as we have seen, been earlier indications of an application to strike out by the Respondents.  But the earlier notices cannot, of course, have asserted any prospective reliance on two of the three matters on which, as it transpired, the application came to be based, namely the rudeness to Employment staff and Ms Sivanandan’s conduct on 6 September.

137	Mr Linden accepts that the form of the strike out application that was eventually moved on 6 September in part relied upon the failure to supply a witness statement and discovery, as required by Orders in that behalf and as had earlier been foreshadowed, but in part also on the events of 6 September and 5 September consisting of Ms Sivanandan’s conduct in reducing a female Employment Tribunal clerk to tears and general conduct to the Employment Tribunal on the 6th and the day before.  We have already cited passages as to the clerk.
138	As to the conduct generally on Ms Sivanandan’s part, the Tribunal had said this:

7.2	(iii)	(b)	“The Applicant’s conduct over the first day and a bit of these proceedings was on sundry occasions such as to obstruct their proper, orderly running.  She demonstrated scorn and contempt for the Tribunal, visited insult and abuse upon us, was slow to respond even to the simplest direction (such as “STOP” when the Chairman could not keep a note fast enough) and indicated repeatedly that she would not accept any direction, guidance or line other than that for which she contended.  If matters went her way, the Applicant was all sweetness and light.  She could be and was charming, flattering and pleasant.  If a decision, indication, sentence or phrase was (or was taken to be) against her, the Applicant became loud and uncontrollable – or on occasions simply refused to respond.  We had learned some of this from observation and experience on 15 August.  We had resolved to take a soft approach in an attempt to avoid upsetting the Applicant, so far as we could consonant with the interests of justice.  We stopped the Respondents’ representative in some of his submissions in order to minimise the risk of antagonising the Applicant.  Nonetheless, we have come to realise the Applicant’s responses were occasionally outrageous and frequently disrespectful.  There was, we think, a temporary improvement on the first day (after our gentle reprimand) and the “hmphing” and snorting did not recur.  However, the Applicant returned to haranguing the Tribunal for its (supposed) ignorance of the issues/details in the case; insisted repeatedly that we could not understand her or her case or its effect on her; shouted when we were apparently unpersuaded on a point and accused us of “setting yourself above the GP” because we were had refused the postponement she wanted.  This conduct was exhausting and wearying, probably for all concerned.”

139	The Tribunal then continued:

7.2	(iii)	(c)	“We have asked ourselves: could this all be caused by any of the medical conditions from which the Applicant suffers, so that we could reliably expect that it would not occur if she were not to some extent unwell.  For this purpose we regarded the Applicant as suffering from stress, insomnia and migraines, with the effects described in her GP’s letter of 29 August.  We have, in preparing for the case, seen documents referring to asthma and we know that is usually a chronic condition, so we are prepared to accept the Applicant is an asthma-sufferer (with the condition controlled, as she told us, by medication).  As recorded above, the Applicant also informed us on the second day of the hearing, that she suffers depression.  We do not know anything about the extent or effect of this since – 

(1)	the GP did not mention or describe it, and
(2)	it is a very variable condition.

In addition the Applicant complains of carpal tunnel syndrome, a repetitive strain injury to the wrist area.  She said (although the GP did not mention it) that this causes difficulty with note taking and carrying files, heavy bags etc.  Indeed, at the Interlocutory Hearing on 15 August she complained that Miss Bates, then representing the Second and Third Respondents, was speaking too fast for her to note.  The Tribunal then observed that: - 
-	Miss Bates was not speaking at all fast (and certainly very much more slowly than the Applicant usually did);

-	the Applicant had Mr Gordon with her as McKenzie friend/assistant and he appeared to be taking notes assiduously, whereas the Applicant was noting only fitfully.

We felt that this was an attempt to disrupt Miss Bates’ submissions rather than a genuine problem and indicated that we were not going to direct any change.”

140	We have already read the conclusion:

7.2	(iii)	(d)	“We are satisfied that the Applicant’s conduct in the course of the hearing was frivolous (disrespectful), vexatious (deliberate/calculated to obstruct) and on occasions scandalous (outrageous).  It prolonged even the most straightforward issue and was obstructive of the orderly conduct of the judicial process.  She was not exonerated or exculpated by her relative ill health.”

141	As to the conduct in relation to the clerk, Shajeda Ramjan, this was outside the sight and sound of the Employment Tribunal but was reported to them, in part by the clerk and in part by Counsel, Mr Linden, who had observed it, as also had his instructing solicitor.  The clerk had given an account to the Employment Tribunal but not one given in the presence of the parties.  As we have already cited, the Tribunal noted that the clerk had asked to be released from clerking the case, a thing that was never known to have happened before with that clerk.

142	As we have seen, the Tribunal refers in its judgment to the clerk’s note and it had heard an account from the Respondents’ side in open court.  The Tribunal held “We have seen that Ms Sivanandan’s conduct was scandalous”.  But Ms Sivanandan did not see the clerk’s note on 6 September, nor did she see the note made by a first aider, Mrs Humphreys, which, whilst the Tribunal did not in terms mention it, was of an oral account given to the Tribunal by Mrs Humphreys.  It is a factual account by Mrs Humphreys of her helping Ms Sivanandan on 6 September, finding her in the lavatories and so on.

143	The question arises: can it have been fair for the Employment Tribunal, in ruling on the strike out, to have had in mind two accounts of Ms Sivanandan’s conduct of which she had had no sight nor sound?  In ordinary circumstances we would undoubtedly say that that could not have been fair.

144	But, and we see this as a crucial point, Ms Sivanandan accepts that when the strike out began to be moved against her on 6 September the Employment Tribunal indicated to her that it would hear Mr Linden first and that when he had completed his case for a strike out Ms Sivanandan could have an adjournment to meet such case had been made against her.

145	Not only does Ms Sivanandan, before us, accept that to be the position (and she was warned that it was an important point that she would be able to return to and, if necessary, could undo her concession if she wished) but it appears, somewhat laconically it has to be said, in the Respondents’ solicitor’s notes.

146	There, speaking of 11.20 on 6 September, the note records Ms Gay as follows:

VG	“Adjournment Tribunal has considered how to proceed.  Wishes to consider whether these proceedings should be struck out.  Two ways forward.  Mr Linden goes now or await adjournment.  Adjournment for Applicant.

147	The Tribunal could, doubtless, have adjourned the strike out to the next day (7 September) and have supplied the clerk’s note to the parties or could have indicated its contents to the parties, and, if necessary, could have done the same with Mrs Humphrey’s notes, but it was not, in our view, unfair at, say 11.30 or so on 6 September, not to waste the rest of the day but to let Mr Linden make his case for a strike out on the basis that there would then be an adjournment to suit Ms Sivanandan.

148	The great probability would have been that the Employment Tribunal would have described orally just what it was that the clerk and Mrs Humphreys had said to it and could have supplied their notes had they been wished for.  There can be no doubt at all that Ms Sivanandan, had she remained present, would have investigated what it was that the Tribunal staff had said, as well as hearing the Respondents’ version and giving her own.

149	Mr Linden accepts that there would have been real force in our concern about Ms Sivanandan failing to see or even to know of some evidence which was, in effect, deployed in the strike out application but for the fact that, without good reason, she walked out on 6 September and never returned.  If she had not walked out, he submits, she would, firstly, have seen and heard the full case against her and, secondly, would have been granted whatever adjournment was reasonable to meet it.  In the very unusual circumstances of this case we accept that that is an adequate response to the concern which we have expressed.

150	On the evidence, on 6 September the Employment Tribunal was entitled to take the view that, save during a current migraine attack, Ms Sivanandan could cope and that it had not been brought to its attention that there was a current migraine attack.  The onus, of course, as to evidence of her medical condition, was wholly on Ms Sivanandan.  A recuperative short adjournment had been offered to Ms Sivanandan.  Ms Sivanandan’s absence, after she left on 6 September, was therefore unexcused and adverse consequences from it were such that she had brought them upon herself.

151	She tells us that she left the Tribunal on 6 September as she genuinely thought that she would jeopardise her health by going on and because her GP had said that she ought not to attend.  But the Tribunal, having regard to the answers given to the Tribunal by the GP in response to its specific requests, had no evidence that supported either the former or the latter and the Employment Tribunal both offered ample time for recovery from any temporary set back or attack and also offered a more comprehensive adjournment to meet whatever case Mr Linden had been able to make.

152	The procedure proposed by the Tribunal, before Ms Sivanandan walked out, was, in our judgment, less than ideal but we cannot say that it represented error of law.  We add that Ms Sivanandan did her overall argument no good by asserting a very serious allegation, namely that Ms Gay deliberately suppressed Mrs Humphrey’s note and had refused to supply it out of prejudice against Ms Sivanandan.  There was, said Ms Sivanandan, no other possible interpretation of the events.  In fact, so far as we can see, the Employment Tribunal supplied Mrs Humphrey’s note as soon as it was asked for, only shortly before the hearing.  It is not uncommon for Employment Tribunals, once an appeal is in course, to require a party first to seek documents by way of the Employment Appeal Tribunal.  That was done and as soon as the Employment Appeal Tribunal requested the note it was supplied.
153	Though we do not pretend to have dealt with every one of the arguments which Ms Sivanandan has raised, nor indeed with authorities that she has cited, we have, in our view, now dealt with her principal points, certainly such, as in our view, as had the best chances of success.  We dismiss the appeal against the strike out.

154	We now therefore turn to the appeal against the failure of Ms Gay, as Chairman alone, to review the strike out decision.

155	On 8 March 2001 Ms Gay sent the decision as to the review to the parties.  It was:

“The decision of the Chairman is that the application for review be not allowed to proceed to a full hearing because it has no reasonable prospect of success.”

By this stage Ms Sivanandan and Mr Gordon had prepared affidavits as to bias exhibited by the Chairman.

156	The Tribunal, that is to say Ms Gay alone, began her extended reasons by saying this:

1	“By faxed letter received on 2 October 2000 the Appellant sought a review of the Tribunal’s decision, dated and sent to the parties on 23 September, on the bases that: - 

(i)	the decision was made in her absence;
(ii)	new evidence as to her health had become available since the conclusion of the hearing;
(iii)	the interests of justice required a review.

The decision, following a hearing on 5 and 6 September, was that the Originating Application should be struck out.  The Respondents objected to a review, setting out why the application had no reasonable prospect of success.

157	There had been correspondence which Ms Gay refers to; Ms Gay says:

4	“This resulted in certain further correspondence in consequence of which it became clear that all parties were content that

(i)	the Chairman should consider the Rule 11(5) point (ie. there was no application that she should discharge herself or that the Regional Chairman or President should step in);
(ii)	the Rule 11(5) point should be considered without an oral hearing,

In the circumstances, the Chairman determined to proceed in accordance with the wishes of the parties.

158	Rule 11(5) says of an application for review:

11	(5)	“An application for the purposes of paragraph (1) may be refused by the President or by the Chairman or the Tribunal which decided the case or by a Regional Chairman if in his opinion it has no reasonable prospect of success.”

159	Ms Gay then turned to what she saw, rightly in our view, as the nub of the case on review.  She said:

6	“The nub of the application for review is that the Applicant was so unwell that she was unable on medical advice to remain in the Tribunal on 6 September 2000 and therefore: - 

(i)	the decision to strike out her claims was made in her absence, so that relevant oral evidence concerning in particular an apology to the clerk on the morning of 6 September was not given and/or;
(ii)	further medical evidence concerning her health/unfitness to conduct a long hearing has subsequently become available, and/or;
(iii)	by reason of these matters, or otherwise, the interests of justice require a review.

160	One can see there a reference back to the particular permitted grounds on which a review can be conducted under Rule 11 of the 1993 Rules, which include that:

11	(1)	(c)	“the decision was made in the absence of a party;
(d)	new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or
		(e)	the interests of justice require such a review.

Even if one of those headings is made good there is no obligation on the Tribunal to review.  It is rather that in such a case it shall have power to review.

161	The Chairman on the review application, then, in her paragraph 7, having begun 

7	“The Chairman is satisfied that the medical evidence now produced would not be capable of persuading the Tribunal that the Applicant was so unwell that she had to leave”

set out reasons for that conclusion which included as follows:

7	(i)	“On the morning of the 6 September the Applicant asked to address us on her state of health and, as recorded in the decision, was permitted to do so.  She spoke for some 10 minutes without: - 

(a)	mentioning that she was suffering from a migraine, or
(b)	asking the Tribunal to adjourn because she was suffering from a migraine and needed to recover.

This was despite the fact that we had accepted in our reasons in support of the decision refusing to postpone the hearing, given orally the day before and sent to the parties in writing on 13 September, that the Applicant was someone who was prone to suffer migraine and would not be fit to conduct her case while suffering a migraine.  We had then specifically said, in the Applicant’s presence, that if an adjournment were required for health reasons it should be requested and would be considered immediately.  The knowledge and thus the evidence that the Applicant was suffering from a migraine (if she were indeed suffering from a migraine), lay entirely with her and nothing prevented her from telling us on 6 September and requesting an appropriate adjournment.”

162	The additional evidence now introduced included, on the medical side, Ms Sivanandan’s GP’s letter of 8 September 2000, which, remarkably and without any explanation, whilst the doctor’s letter of 29 August had been unable to offer a prognosis, now said that a prognosis was possible.  The doctor, on 8 September said, amongst other things:

“On Tuesday 5 September 2000, during the Hearing she [Ms Sivanandan] suffered a dizzy spell and a blackout.
On Wednesday, 6 September 2000, she suffered from a severe migraine attack with vomiting.”
and then said:

“Given her past history, I am confident she will be able to resume her Hearing a period of 3 to 6 months.

The passage about 5 September and 6 September can only have been based not on the doctor’s own observations but what Ms Sivanandan or perhaps Mr Gordon or some other had said to the doctor.

163	The general practitioner makes no reference to seeing Ms Sivanandan on 5 September, nor does she say that she had advised Ms Sivanandan on the telephone on the 6th to leave the Employment Tribunal.

164	The Chairman, Ms Gay, in the review judgment says:

7	(i)	(b)	“At no stage on 5 September did the Applicant suggest she had had a blackout (and nor was the same observed) but she could have told the Tribunal had it occurred.”

165	The rest of the new medical evidence was summarised by the Chairman as follows:

7	(ii)	“In respect of the evidence from Mirko Cirkovic, primary care psychologist, dated 23 October 2000, this is purely an historic account insofar as it is specific to the Applicant, since it relates to sessions from 19 March 1998 to 7 June 1999.  He had not seen the Applicant for 15 months by the date of the hearing and 16 months at the date of the report.  This evidence could have been available for the Tribunal on 5 or 6 September, had the Applicant wished to provide it.”

And Ms Gay then dealt with the other limbs of the application for a review.

166	It has to be remembered, firstly, that the onus of providing adequate medical evidence such that the 5 September fixture would have to be adjourned or that the 6 September walk out was medically justified was wholly on Ms Sivanandan and that by September 2000 she had known for months that it was in her mind to rely on medical evidence for an adjournment.

167	The Employment Tribunal, on 5 September, had, as the most recent and most specific medical evidence, the doctor’s letter, recognised by Ms Sivanandan herself to be inadequate, by which we understand she meant inadequate in terms of justifying an adjournment as well as inadequate in being less full than, in her view, it might have been.

168	The post-6 September medical evidence gave no good grounds for a belief that the 6 September walk out was medically justified, other than by simply asserting or repeating, what Ms Sivanandan had told the doctor.

169	There were real grounds of scepticism in the approach to adjournments on medical grounds, as we have seen by reference to conduct of or in other cases and the Chairman had, of course, the benefit of having observed Ms Sivanandan over 5 September and parts of 6 September.

170	The Chairman says, of 6 September:

Paragraph 17

“It is correct that the Tribunal had determined that I informed the parties that we would take proper breaks and not sit for a long day.  I also told Ms Sivanandan that she should indicate if she at any time needed an adjournment.  In practice I had difficulty in stopping her when the Tribunal wanted to start an adjournment.  The Tribunal sat as follows (on 5 September): - 

	10-11.45
12 to almost 1 o’clock, at which stage I checked with all the parties to ascertain when they would feel ready to resume.  All agreed that 1.50 would be satisfactory.  At that time I sent my clerk to ascertain whether they were ready and each indicated affirmatively.  In consequence we started at 1.53.
1.53-3.40
3.50 to 4.30

Contrary to what is asserted at paragraph 8 of Mr Gordon’s affidavit there was no rush.  Matters were not taken quickly Ms Sivanandan did not say that she was ill and/or exhausted.  Matters went on as long as they did because she was making submissions from about 3pm to 3.58 (although this includes the 10 minutes adjournment).  I offered the afternoon adjournment because I observed that Ms Sivanandan appeared to be flagging somewhat.  It was eventually accepted, without any indication that she was not fit enough to continue.”

Ms Sivanandan had had a fair chance to be heard on the issue of the strike out but left without, as the Tribunal held, good cause.

171	We do not feel able to say that the Chairman’s decision on the review application was in error of law.  Accordingly, the appeal as to the review is also dismissed.  We are conscious that we have not dealt expressly with the many authorities which have been referred to, nor indeed with several references to the Human Rights Act and even to an invocation of the Disability Discrimination Act.  We have not felt it necessary to do so.

172	Moreover, there are many allegations that have been left unattended.  For example, Ms Sivanandan says that the Employment Tribunal was dishonest when it said that it put out of its mind that Ms Sivanandan had made many and repeated allegations of bias against it.  Again, Ms Sivanandan accused the Tribunal of bias in not hearing further argument from her on one point, at an earlier stage, when it had already indicated it was in her favour.

173	Ms Sivanandan accused Ms Gay of acting unreasonably and perversely in enquiring whether the allegations of bias, made by Ms Sivanandan against Ms Gay, should lead to a position in which the review ought to be conducted other than by Ms Gay.  It might be worth setting out the references to that.

174	Thus on 30 January 2001 a letter was written that said:

1	“The Chairman has recently received from the EAT copies of the affidavits sworn by Ms Sivanandan and Mr Gordon (which have presumably also been copied to the Respondents).  The affidavits make numerous allegations of bias and race discrimination, amongst other matters.  In the circumstances, the Chairman instructs me to ask whether the parties consider it appropriate for the consideration of the review application to continue before her [in other words Ms Gay], or whether they urge that some other course should be adopted (as permitted by Rule 11(5) of Schedule 1 to the Employment Tribunals (Constitution and Procedure) Regulations 1993).

175	That met a response that was given by Ms Sivanandan on 15 February:

(2)	I see no reason why the Chair who made the original decision should not hear the review, unless she accepts that there may have been bias or misconduct in the conduct of the proceedings on 6th Sept ’00 when my case was struck out.

176	And yet, even so, Ms Sivanandan’s skeleton argument at paragraph 21 (e) said:

21	(e)	“The Chair acted unreasonably and/or perversely by asking the parties whether she should deal with my review application in view of my complaint of bias and discrimination.”

177	Nor do we respond to what can best be described as slurs against the Employment Tribunal such as Ms Sivanandan’s allegation that had she had a white barrister her case would not have been struck out.  As we have said, we have let the actions of the Employment Tribunal speak for themselves and the Tribunal’s actions, in our view, furnish no grounds for any accusation of prejudice or bias against Ms Sivanandan but rather, if anything, a considerable willingness to accommodate her.

178	We have not thought it necessary to burden what is already a very long judgment with detailed responses to arguments and assertions which, in our view, could add nothing to the force of Ms Sivanandan’s case and, for the reasons that we have given, we dismiss the appeals.