England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MRS JUSTICE ELISABETH LAING
UKEAT/0151/15/MC, [2015] UKEAT 0151_15_2210

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/11/2017

Lord Justice Bean :

1. Dr Robert Pye began work at Queen Mary and Westfield College (University of London) on 1 October 2004, initially as a visiting lecturer, and from 1 June 2005 on a salaried basis. On 24 July 2009 he issued employment tribunal proceedings making claims based on protect ted disclosures that he had been subjected to detriment due to having made protected disclosures; to "direct race discrimination and/or harassment through the course of his employment"; to victimisation under the Race Relations Act 1976; that he had been dismissed ostensibly by reason of redundancy but in truth because of his protected disclosures, or alternatively that his redundancy was unfair in any event; and finally that he was not paid in lieu of notice for the three month period up to 11 May 2009, together with pension contributions for the same three month period, and was owed a further 8 days' holiday pay. The alleged protected disclosures in particular were numerous; the particulars of claim included in paragraph 8 over 40 separate qualifying disclosures beginning on 10 June 2005 and continuing until June 2008. The consequent detriments alleged in paragraph 9 number at least 38 over the period 2005-2009.
2. At a Case Management Discussion held on 9 June 2010 directions were given for a six week hearing to start on 8 February 2011. The claimant sent medical reports dated 14 January 2011 and 2 February 2011 to the employment tribunal and applied for the forthcoming hearing to be vacated because of his ill health as shown in the reports. The report of 1 February 2011 from a consultant psychiatrist said that he was suffering from a severe generalised anxiety disorder along with panic disorder and depression with the result that his concentration and motivation were poor; he needed "urgent medical attention"; that he was not fit to plead his own case at present; and that the doctor requested a postponement of the court case "for a period of at least three months". The employment tribunal, at the hearing on 8 February 2011, refused an adjournment and struck out the claim. On appeal to the Employment Appeal Tribunal, which unfortunately was not heard for just over a year, this decision was reversed by a decision of the President, Mr Justice Langstaff, sitting with two lay members, and the case remitted to the employment tribunal at East London.
3. By letter of 24 January 2013 the ET sent out notice of hearing for a total of 29 days in the months of April-June 2013. Neither side had been asked for dates to avoid. The respondents' counsel was unavailable in April and they asked for the April dates to be vacated. Dr Pye objected to the proposal to hold hearings in two week blocks, saying that the case needed "undivided and uninterrupted attention" from the tribunal. He also asked for rest breaks during hearing days to allow for his state of health. By order of 1^st March 2013 Employment Judge Housego gave directions for hearing dates over 29 sitting days between 13 May and 9 August 2013 including some rest dates and also allowing time for rest breaks on hearing days.
4. By email to the Regional Employment Judge dated 20 March 2013 Dr Pye complained that the Respondent was trying to pervert the course of justice and said that numerous issues had yet to be addressed or resolved to ensure a fair and unbiased hearing. He asked for the hearing dates directed by EJ Housego to be vacated and a case management discussion to be substituted. REJ Taylor rightly declined to become involved and EJ Housego refused an application to review his own orders.
5. By a 57 page email dated 19 April 2013 to REJ Taylor Dr Pye indicated, among other things, that his elderly mother resident in the USA needed care which he had agreed to provide and that he would be unavailable from the middle of May to the end of August. After further correspondence a case management discussion was arranged for Friday 10^th May 2013, the last working day before the trial was due to start. This was conducted by telephone. The full hearing was vacated and a case management discussion listed for the three days of 14-16 May 2013.
6. New hearing dates were given at the CMD for the substantive hearing in September 2013. Employment Judge Housego directed that the first two days of the substantive hearing would be reading days and the third day would deal with the matters of holiday pay, notice pay and pension contributions. Those subjects could be dealt with in the Tribunal's view, by evidence from the claimant and one witness for the respondents. The remainder of the case, as my account of the particulars of claim indicated, was of some factual complexity. The respondent had by this time, following extensive requests for disclosure, prepared a bundle running to over 7000 documents and the claimant had some 4000 more. The judge directed that the respondent was to reduce the size of its bundle to 4000 pages. The claimant was directed to supply the documents on which he intended to rely, again not to exceed 4000 pages. In the course of the second day of this hearing on 15 May 2013 the claimant's health collapsed and he had to leave. In July 2013 he wrote to request the postponement of the September hearing on the grounds of his ill health. That was granted and in due course a new hearing period was fixed to begin on 3 February 2014.
7. On 2^nd August 2013 the tribunal wrote to Dr Pye asking him to provide medical evidence on his current state of health. A report of the same day from a Dr Petrochilos stated that he was suffering from moderate to severe depressive disorder, severe generalised anxiety disorder and panic disorder so that his concentration and ability to focus was poor. He was also suffering severe physical effects from the depression. The doctor stated that in his professional opinion, Dr Pye was at present medically unfit to plead and manage his own case. He sought a postponement of four months.
8. A second medical report from a Dr Darve dated 13 December 2013 stated that (through no fault of his own), Dr Pye's programme of treatment had yet to begin. Dr Darve repeated that Dr Pye was medically unfit to plead and manage his own legal case and requested "a continuance of the adjournment on medical grounds" and "a temporary suspension of the legal proceedings until the end of March 2014 when I can update the court as to where we are with Dr Pye's medical treatment."
9. Dr Pye applied to EJ Housego to vacate the hearing fixed for 3 February 2014. The judge refused the application. He referred to the case of Riley v CPS [2013] EWCA Civ 951. He wrote:-

"the GP's report does not say that Dr Pye will be fit to conduct his case within three months. What is says is that he, the tribunal will update tribunal in three months. … While not seeking to give medical evidence myself, and being wary of the criticism of the Eat of EJ Pritchard's tribunal decision [in the present litigation] [that is the decision of the EAT in the present case dated 23 February 2012 reversing the ET's refusal to postpone the hearing], it would be surprising if the chronic mental health problems of Dr Pye had lessened without treatment when the evidence is that he is going to be unwell for at least another 3 months. So I regard it as simplistic to say that there is just a delay of 3 months before treatment begins and in the scope of things this is minor."

10. He went on to say that the right of the claimant to a fair hearing had to be balanced against the same right of the respondent to have a fair hearing with reasonable expedition. He concluded;-

"Whether it is the approaching day of the case that lays him low I am not qualified to say, but it is certainly the case that his health has seemed to become acute as well as chronic with the approach of a hearing. I can have no confidence that I adjourn the hearing for 6, 9 or even 12 months that the same situation will not reoccur on the balance of probabilities, weighing this history, it will. That is not a medical opinion but an assessment of the past history of this claim. I have set out that the matters which are the subject of the claim are many years old. After deep consideration I conclude that it would not be fair to the respondent to vacate the hearing dates in the hope that Dr Pye will be able to conduct his case on the next occasion. .. I conclude that the hearing, as listed, is really the extremity of when the respondent can be expected to consider it constitutes a fair hearing of Dr Pye's claim. There is simply too much prejudice to the respondent to adjourn the case further. I decline to adjourn the hearing, which, should Dr Pye not be able to attend will commence on the first day listed when the tribunal will hear any submissions the respondent wishes to make, notice of which should now be given to Dr Pye who should respond prior to that date, 3 February 2014."

11. On 31^st January Dr Pye submitted a further request by email for postponement of the 29 day substantive hearing due to start on 3 February 2014, attaching a further medical report dated 28^th January 2014 from a consultant clinical psychologist, Dr Linke, who wrote:-

"In my professional opinion Dr Pye is present unfit to properly represent himself in court and manage his own case and I request a continuance of the adjournment be granted for a period of six months to safeguard Dr Pye's health and allow him time to receive treatment and improve his mental health. The rationale for this is that a course of cognitive behavioural therapy (CBT) has been planned to begin in mid Feb 2014 and given Dr Pye is eager to get better so that he can have his case heard and decided, the prognosis is good for Dr Pye to befit enough to manage and plead his own case in six months time"

12. He noted that because of resourcing issues and reorganisation of local mental health services, Dr Pye had not received the treatment previously promised to him. He concurred with the diagnosis of Dr Petrochilos and said that Dr Pye was "currently unable to complete any tasks related to the case".
13. The tribunal, consisting of EJ Housego and two lay members, convened on 3 February 2014. The respondents were represented by counsel. Dr Pye did not attend and was not represented. The tribunal had before them the three medical reports, including that of Dr Linke which they accepted "entirely at face value". They were told that the respondent was still in contact with all the witnesses in the case, although some of them had moved to other positions. They noted Dr Linke's view that the prognosis was good for Dr Pye to be fit enough to manage and plead his own case in six months time. They continue:-

"While on the balance of probabilities the tribunal with great misgivings, (given the number of times the claimant's health has failed with the approach of the hearing), again accepts that at face value that is still another half a year before the case is heard. A fact sensitive claim of many facets, lodged in August 2009, would not be heard until August 2014. There is a appreciable risk that history may repeat itself and Dr Pye's health again fail as the hearing date approaches. While not doubting the medical evidence, nor giving a medical opinion ourselves, Dr Linke is unable to assure us the claimant will not be well enough. The risk that he will not cannot be ignored."

14. The tribunal went on to note that the claims made by Dr Pye were wide ranging and include allegations that colleagues had made false and misleading statements, that student grades were artificially inflated, that a particular colleague favoured students of the same ethnic origin as himself, that there was widespread fraud in the assessment process, and that another colleague intentionally maximised his student's pass rate in order to gain favour with them. Dr Pye alleged that as a result of his expose of these issues an artificial redundancy was manufactured to get rid of him. The tribunal stated that "these are allegations of great seriousness against a number of individuals, all of senior status and against the institution, all were denied. It is unsatisfactory, to say the least, that these people have had these allegations against them unresolved for five years".
15. They ordered the claim to be struck out on the basis of rule 47 (non-attendance of a party) and Rule 37(1)(e) (no longer possible to have a fair hearing).
16. Dr Pye applied for a review by letter of 7 April 2014 but that application was unsuccessful. He gave notice of appeal against both the substantive decision to strike out and the refusal to review. On the sift Langstaff J, President of the EAT, who had, as noted above, presided over the previous appeal brought by Dr Pye, directed that the notices of appeal disclosed no reasonable basis for the appeals to proceed. However, Dr Pye exercised his right to an oral hearing under Rule 3(10). At the hearing of the Rule 3(10) application, Judge Eady QC permitted the appeal against the substantive decision of the ET (though not the appeal against the review decision) to proceed to a full hearing.
17. That hearing took place before Elisabeth Laing J on 22^nd October 2015. Dr Pye appeared in person and the respondents were again represented by counsel. Elisabeth Laing J dismissed the appeal against the substantive decision of the ET. Needless to say that decision was itself the subject of an application for review which was refused. The judge also ordered the appellant to pay £100 towards the respondent's costs.
18. Dr Pye sought permission to appeal against all the decisions of Elisabeth Laing J, which was refused on the papers by Lewison LJ in an order dated 22^nd December 2016. Dr Pye has renewed his application for permission to appeal to an oral hearing. He requested a hearing of much greater length than the usual 30 minutes and was allocated a hearing time of 1½ hours. I heard submissions from Ms Lord of counsel appearing on his behalf under the Court of Appeal pro bono advocacy scheme, followed by further submissions from Dr Pye himself. I was greatly assisted by a skeleton argument which, though in the name of Dr Pye alone, was, I was told, a joint effort by him and Ms Lord. I am grateful to both of them, in particular to Ms Lord for her pro bono advocacy, which was of high quality.
19. Once a case reaches this court on appeal from the EAT the decision essentially under scrutiny is that of the ET which decided the case at first instance. It is well established that case management decisions, even decisions to invoke the drastic remedy of striking out, are discretionary decisions for a tribunal and it must be shown that the decision was wrong in law, took account of irrelevant considerations or lay outside the wide discretion conferred on the first instance decision makers.
20. Miss Lord and Dr Pye submit that the ET reached a perverse conclusion in respect of the medical evidence presented to it. I do not agree. The ET analysed the three medical reports with great care. Taking the two decisions of 22 January 2014 (EJ Housego alone) and 3 February 2014 (EJ Housego with two lay members) together, on each occasion it was right to say that the medical evidence provided no certainty that in three months time, six months time or any other period, Dr Pye would be fit enough to conduct a six week tribunal case in person. Moreover, I agree with the ET's view that even if it had been likely that a six week substantive hearing could take place beginning in or around July 2014, that would be five years from the issue of proceedings and, one might add, nine years from the earliest events complained of.
21. Ms Lord is of course right to point out that in some cases (for example Hendricks v MPC [2003] IRLR 96), tribunals have had to grapple with alleged courses of discriminatory conduct stretching over many years; in that case eleven years. But Hendricks is not authority for saying that it is always fair to try complex factual cases up to 11 years after the facts complained of. As the ET said, there must be fairness to the respondents and their witnesses against whom allegations have been made, as well as to the claimant. It is impossible to say that the tribunal's conclusion about the fairness of yet another adjournment was perverse. On the contrary: I consider that it was plainly correct.
22. Ms Lord and Dr Pye also complain that a proportion of the five year period from 2009-2014 involved delay on the part of (a) the ET in not arranging a case management discussion for 10 months after the issue of proceedings; (b) the EAT in that proceedings before that tribunal took 12 months after the ET's decision to strike out; and (c) the respondents in resisting or being slow in giving disclosure or answering discrimination questionnaires. But I do not read the decisions of the employment tribunal of 22 January and 3 February 2012 as being based on blaming Dr Pye for the delay. In that sense they were remarkably non-judgmental. The basis of their decision to strike out was that firstly there could be no certainty of a hearing in the summer of 2014, and secondly that even if there had been such a certainty or probability it was unfair to the respondent's witnesses to be subjected to yet a further adjournment. They might have added, in my view, that when a tribunal hearing fixed for several weeks is vacated at short notice it is not simply costly for a represented party but also immensely disruptive. Witnesses who have been summoned to attend on particular days have to be stood down and new dates found in their diaries. They also have to prepare themselves each time for what may turn out to be prolonged cross-examination. It was conceded by both Ms Lord and Dr Pye that there must come a time when a case cannot and should not be adjourned further, but, they submit, that point had not been reached in the present case. The ET disagreed and so do I.
23. It is further suggested that the tribunal ought to have considered whether a fair hearing of at least part of the claim could have taken place without oral evidence from the claimant. Miss Lord notes the previous order of the ET that the claims for unpaid notice pay (including pension contributions) and holiday pay were to be heard on the first day of the hearing with only one witness attending for the respondent. But no-one suggested that the tribunal ought to have dealt with these claims in the absence of the claimant, and I doubt, in any event, whether they were truly self-contained. The respondent's case is that the claimant's employment was validly terminated with effect from 26 April 2009 by reason of redundancy. That termination date is the one given by the Claimant in Form ET1. I do not see how any further pay could be due in lieu of notice and no explanation was given for why it should have been. It was well within the discretion of the tribunal to strike out the claim as a whole rather than to attempt to salvage small parts of it to be heard in the claimant's absence. That course would no doubt have led to further accusations of bias and impropriety to add to the many which Dr Pye had made.
24. For these reasons I am satisfied that there is no arguable basis for challenging the substantive decision of the tribunal to strike out the claims and I refuse permission to appeal against that decision. It is also plain that both EJ Housego and Elisabeth Laing J were right to refuse to review the respective decisions of the ET and EAT. The order for costs in the sum of costs for £100 was a very modest amount given the way in which the proceedings had been conducted. For the avoidance of doubt I also refuse. permission to appeal against the review decisions and the order for costs.