IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Commissioner Howell QC)
Monday, 22nd July 2002
B e f o r e :
LADY JUSTICE ARDEN
MR JUSTICE CRESSWELL
|- v -|
|THE LORD CHANCELLOR'S DEPARTMENT|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Appellant
MS CATRIN LEWIS (Instructed by Treasury Solicitor, Queen Anne's chambers, 28 Broadway, London SW1H 9JS)
appeared on behalf of the Respondent
Crown Copyright ©
Monday, 22nd July 2002
"The medical evidence that we have been supplied with is inadequate."
"We have to balance this against a concern that Mrs Andreou does have medical difficulty, but we have inadequate evidence of her medical condition. In order to resolve the matter the Tribunal considers it needs better medical evidence and the decision and consequential orders set out below will enable the Tribunal to obtain that evidence and determine the issue on 13 November 2000."
"(a) It is ordered that the Applicant should produce a medical report by 4 pm on Thursday, 9 November 2000 to the Employment Tribunals and to the Respondent stating in detail the following matters:-
(i)The nature of and prognosis for Mrs Andreou's illness.
(ii) Why Mrs Andreou was unfit to attend the hearing on 6 November 2000.
(iii) Why, if this is the case, Mrs Andreou is unfit to attend the hearing on Monday, 13 November 2000.
(iv) When, if ever, Mrs Andreou will be fit to attend a hearing for a period of 10 days consecutively and give evidence for a substantial period of that 10 days period consecutively.
(c) Depending upon the content of the medical report, the Tribunal will also consider the Respondent's application to strike out the Originating Applications on 13 November 2000, so Mrs Andreou should be prepared to show cause at that hearing why her complaints should not be struck out.
(d) If Mrs Andreou is fit and her Originating Applications are not struck out, then the Tribunal will commence hearing her claims after the applications have been heard on 13 November 2000 for the five days that will then remain of this hearing."
"The answer to your questions are [sic] as follows:
1.I enclose a report of her medical condition from 1998.
2, 3 and 4.I am unable to comment. I have referred her to Dr Smith, Consultant Psychiatrist at St Ann's Hospital, St Ann's Road, London N15 who will be in a better position to help you.
I hope the above information will be helpful to you."
"On 27th October 2000 she consulted me as she said she was feeling anxious, not sleeping well, lost one stone in weight, having migrainous headache and at times feeling suicidal. For this reason, I referred her to Dr Smith, Consultant Psychiatrist at St Ann's Hospital for a domiciliary visit and assessment."
"Your letter dated Nil was received by me on 7 November 2000 pm and I am to inform you that it is not possible to prepare a psychiatric report by the date you have asked for (by Wednesday/Thursday 4 pm). Sorry."
"I refer to the Tribunal's order contained in paragraph 10(a) of the decision promulgated on 7th November 2000. The Chairman notes that the enclosures with your letter do not cover the matters ordered at paragraph 10(a)(ii), (iii), and (iv) and, although a GP's report has been produced it does not resolve unequivocally the points set out in paragraph 10(a)(i). For this reason the Chairman has asked me to write to you.
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 be prepared to do so at the hearing on Monday 13th November 2000."
"10.1The report of Dr M Pal, Mrs Andreou's general practitioner, dated 8 November 2000 does not state the nature and prognosis for Mrs Andreou's illness.
10.2The wording of Dr Pal's report is identical with that of the report of Dr Pal of 31 July save for the final paragraph.
10.3The final paragraph of Dr Pal's medical report of 8 November reveals that Mrs Andreou went to her GP on 27 October but did not obtain a medical certificate at that time which she made available to the Tribunal. Notwithstanding the visit on 27 October, Dr Pal does not make any attempt to give details of the nature of and prognosis for Mrs Andreou's illness.
10.4The fact that Dr Pal has referred Mrs Andreou to a consultant is not something from which this Tribunal can draw an inference that the nature of Mrs Andreou's illness is serious. The reference in the medical report is that Mrs Andreou has been referred to the consultant psychiatrist `for a domiciliary visit and assessment'. The report of Dr Pal does not indicate that Mrs Andreou has seen the consultant psychiatrist.
10.5The letter from the consultant psychiatrist is from Dr Ray and not from Dr Smith, who is referred to in Dr Pal's letter, and makes no mention of Mrs Andreou having seen Dr Ray or Dr Smith.
10.6Mrs Andreou visited Dr Pal on 27 October 10 days before the hearing and could have asked for a medical report at that time.
10.7It is not for the Tribunal to order a medical report merely because there is a reference in the Originating Application to a nervous breakdown, as has been suggested by Mr Onuegbu. It is for Mrs Andreou to prove her case.
10.8It is not for this Tribunal to comment on what advice Mrs Andreou may or may not have been given by her trade union representative which is a matter referred to by Mr Onuegbu.
10.9Mr Onuegbu suggests that the Respondent is not prepared to accept that Mrs Andreou is ill and that they have produced no evidence to the contrary. It is not for the Respondent to prove that Mrs Andreou is ill That is a matter for Mrs Andreou to prove.
10.10It is immaterial whether Mrs Andreou's trade union representative was a full-time representative in the employment of the Respondent or a part-time representative in the employ of the Lord Chancellor's Department. The representative was bound by union rules.
10.11Mrs Andreou has been notified by the letter of 10 November 2000 that she would be required to show cause and Mr Onuegbu has made submissions on this matter to the Tribunal in accordance with Rule 4(7) of the Rules of Procedure."
"If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."
"15.1The evidence in relation to Mrs Andreou's health remains the same as at the hearing on 6 November. The medical report of Dr Pal of 8 November is exactly the same as that of 31 July 2000 save for the final paragraph which indicates that Mrs Andreou visited her general practitioner on 27 October.
15.2Mrs Andreou has had ample time to produce medical evidence and has failed to do so.
15.3The complaint relates to matters that go back as far as 1989, some 11 years ago.
15.4We have taken into account the stress on other members of the staff at the Wood Green Crown Court where the Applicant worked. We have been told by Mr Cavanagh that one of the individuals named in Mrs Andreou's complaint has been off work for two months with stress.
15.5We have been told that the case is damaging morale and interfering with the smooth running of the Wood Green Crown Court.
15.6No evidence has been put forward by Mrs Andreou as to when she will be fit to attend a 10-day hearing."
"21.1Mr Onuegbu on behalf of Mrs Andreou has been given an opportunity to show cause why an order under Rule 13(2)(e) should not be made.
21.2The application to adjourn by Mrs Andreou was made late.
21.3Mrs Andreou has produced inadequate medical evidence notwithstanding the order of the Tribunal and the additional week in order for her to furnish medical evidence.
21.4The Tribunal is satisfied that the manner in which Mrs Andreou is conducting these proceedings is frivolous and vexatious."
"There was, in our judgment, no proper ground or evidence identifiable from the Tribunal's decision to warrant the conclusion either that the complaints made by Mrs Andreou in her Originating Application were themselves inherently frivolous and vexatious, or that the manner in which she and her representative were seeking to obtain a longer adjournment based on the most recent medical evidence and her reference to a consultant psychiatrist for assessment fell within that description."
"That, in our judgment, substantially misstates the effect of the most recent medical evidence, since it omits to mention by far the most significant points in it: that on her consultation with Dr Pal on 27 October she had been immediately referred to a consultant psychiatrist for assessment, and the express reference to feeling suicidal. Those in our judgment should confirm to any reasonable person, in conjunction with the other specific details given, that she was considered to be suffering from a serious medical condition even if its precise nature and any psychiatric diagnosis remained to be determined following the specialist assessment, which of course required more time than the tribunal's original directions given in ignorance of these points had allowed."
"20.The Tribunal's second reason at paragraph 15.2 that:
"Mrs Andreou has had ample time to produce medical evidence and has failed to do so"
similarly fails in our judgment to take account of what was actually said in the new evidence, and of what we are satisfied was a clear application on reasonable grounds by Mrs Andreou's representative at the hearing on 13 November 2000, for at least some more time for specialist evidence and assessment of her condition now that a Consultant was involved, rather than having her case immediately dismissed with knowledge about her condition still incomplete. In our judgment, in those paragraphs (as in their earlier references to Dr Pal's report in paragraphs 10.1 - 10.5 of their Extended Reasons, where what is said about the medical certificates is also clearly inaccurate) the Tribunal did misdirect themselves about the effect of the medical evidence before them on 13 November 2000; or alternatively failed to take account of its effect determining that the proceedings should be immediately struck out or dismissed. We are satisfied they thereby acted unreasonably and erroneously in law so that their second decision has to be set aside."
"21.A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.
22.If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved."
"While any tribunal will naturally want to be satisfied as to the basis of any last minute application for an adjournment and will be anxious not to waste costs and scarce tribunal time or to cause inconvenience to the parties and their witnesses, it may be that in future cases like this a tribunal or advocates for either party could suggest the making of further enquiries and a very short adjournment for this purpose."
"7. We next considered the application for an adjournment on the grounds of Mrs Andreou's health. The Tribunal had before it a certificate from her General Practitioner stating that she should refrain from work for 13 weeks from 27 October. The certificate does not say that she is unfit to attend the Tribunal. Nonetheless she is not present and a welfare officer, who was there, said that she did not think that Mrs Andreou could attend today. However, that welfare officer was not medically qualified. We also know that Mrs Andreou has not worked for two years on account of sickness.
8. We are not satisfied that, if we simply adjourn this matter, Mrs Andreou will be in any better state to appear in six months time than when a 10 day case would be re-listed. The medical certificate that we have been supplied with is inadequate."