United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT
For the Respondents	MR M DUGGAN (of Counsel) Instructed by: Ms L Heley Messrs Eversheds Solicitors Holland Court The Close Norwich NR1 4DX


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the directions given by an Employment Tribunal Chairman in relation to Mr Scott's complaint against his former employers, Lotus Cars Ltd.

Mr Scott had been employed by Lotus Cars as a senior development engineer. He suffered what might properly be described as a nervous breakdown in 1996 and has been off work since February 1997. As a result of a directions hearing in 1998 heard in Scotland to clarify the issues, it was made plain that he is inviting the Employment Tribunal to consider that he has been unfairly dismissed by Lotus Cars - I think it is a constructive dismissal allegation - and that he has been discriminated against by them under the Disability Discrimination Act 1995.

It would appear from the papers before me that the appellant, Mr Scott, is suffering from an acute form of endogenous depression. That illness has affected the way this case has proceeded. Essentially, Mr Scott feels unable to travel to the location of the Employment Tribunal or this Court because of his illness, and he has not appeared at this appeal but has invited us to take into account, as we have, his submissions.

There is a balance to be struck between the interests of justice in a wider sense, and the interests of each of the parties to these proceedings. Mr Scott wishes to have his claim adjudicated at a time when he feels capable of presenting his case, which may be some far date in the future. Lotus Cars Ltd wish to have the opportunity of refuting these allegations, and they have a right to a disposal of this case in a reasonably short period of time and without incurring disproportionate cost and expense. It is the balancing of these interests which lies at the heart of the appeal.

In April 1998 the appellant had signed a form of consent which enabled his medical records to be released to an expert whom Lotus Cars wished to appoint. The Company is plainly entitled, in my judgment, to have the appellant examined by a qualified psychiatrist so that their interests in this litigation can be protected. It was for that purpose that the consent was given. Lotus Cars instructed a consultant psychiatrist, who is located in London and has offices in East Anglia, and attempts were made to arrange for Mr Scott to attend so that he could be examined by this consultant. Having reviewed the papers in this case, I am quite satisfied that Lotus Cars' solicitors, Messrs Eversheds, have acted reasonably and properly in relation to the arrangements which they were seeking to make to enable Mr Scott to travel for the examination. Mr Scott was told of the date and the name and the place of the examination. He was sent plane tickets, not just for himself but for a friend to accompany him. He was offered reasonable subsistence expenses in connection with that trip.

In circumstances which are very unclear to me, Mr Scott eventually indicated that he could not travel to see the consultant, and an application was made to have his case struck out. Mr Scott relied on a letter from Kenmure Medical Practice, a Dr. Valerie Berg, who is a partner in that practice. She said that on that day, that is 18th August, the appellant had presented himself "in a very distressed and agitated state". She expressed the view that she could not understand why he should have to attend an independent medical expert at all, and that the appellant was simply "just not fit to travel to London". She raised the question whether the nominated consultant, Dr Guirguis, would need to see the appellant before writing a report as he would have all the relevant written material available to him. She finally expressed the view that the forthcoming meeting, by which I think she had in mind the forthcoming Employment Tribunal hearing, "will inevitably lead to a deterioration in Alisdair's health". That letter was sent to the Employment Tribunal in advance of the hearing, which eventually came on 21st August. Mr Scott did not appear.

The Company had by this time reached the end of their tether. They regarded the appellant as having acted vexatiously, citing as examples, the fact that he appeared to be alleging harassment against the solicitor which was quite unjustified; and also, alleging that he did not know the name of the consultant who he was to see when he did; that he did not know the place or time of the appointment when he did.

The tribunal indicated in the Notice of Hearing that it would be considering the application to strike out and then giving any further directions. What actually happened at the tribunal was that directions were given, the application to strike out not being proceeded with at that time.

In so far as Mr Scott appeals the order that was made by the tribunal on the basis that the hearing was essentially to deal with a striking out application, his Notice of Appeal is without merit. The tribunal made it plain that they would deal with directions if the case was to proceed for hearing, that did not require them to adjudicate on the application for striking out.

The directions which were made are these:

"DIRECTIONS

Upon hearing Ms Heley of Eversheds, on behalf of the respondent, and upon the applicant not attending, but submitting a medical certificate, the following directions are made:

1. The proceedings are stayed pending receipt by the Tribunal of a medical certificate from the applicant that the applicant is willing and is able to conduct the proceedings and to comply with the Industrial Tribunal orders made within the proceedings and as additional evidence of which he shall have:-

(i) disclosed to the respondents all medical records (including giving written consent for the disclosure of the medical records maintained by the respondents Occupational Health Department) and reports concerning his condition.

(ii) attended the respondents nominal medical expert for examination.

(iii) all in accordance with the consent he had already given in this regard before the Industrial Tribunal in Glasgow.

2. The case will be reviewed by this Tribunal in six months.

3. There shall be liberty to apply to restore the case for hearing or for further directions, by either party at any time on notice.

4. The question of costs is in the mind of the Tribunal but any decision in this regard is reserved.

5. The case is reserved to the Tribunal constituted for this Directions Hearing."

We have been assisted, considerably, on the hearing of this appeal by Counsel and by his instructing solicitors.

The position that has been taken by Mr Scott is that he simply is not fit to travel to go and see the consultant; that he is prepared to consent as he has done to medical records being disclosed; and that is was unfair of the Employment Tribunal to have required him to disclose medical records to the respondents' solicitors or to require him to attend the nominated medical expert, bearing in mind that the expert was located in London or East Anglia.

We have not found this an easy matter to adjudicate upon. It is clear that the Employment Tribunal was attempting to achieve some finality to the litigation which was started as long ago as December 1997. We support them in that endeavour.

It does seem to us, on the other hand, that at this time it is not necessary that the medical records should be disclosed to the respondents themselves other than the records in the respondents' own Occupational Health Department. In relation to the latter such records, that is medical records maintained by the respondents' Occupational Health Department, I order that the appellant give his written consent for the disclosure of those records to the respondents' solicitors within 14 days of today. I make that order and I further direct that the proceedings be stayed pending that step, that is the written consent, and pending the appellant attending a medical examination by the respondents' nominated expert at a date, time and place in or near Glasgow fixed by the respondents with prior notification to the appellant.

The reason why I make the second order is to accommodate the appellant's problems in travelling. It is essential that he properly co-operates with the respondents' reasonable requests in relation to medical examination. I should make it plain that so far as the Employment Appeal Tribunal is concerned it will be likely to treat as a correct application of a discretion any decision by the Employment Tribunal to strike out the Originating Application were the appellant not to comply with either of these orders.

Had the Employment Appeal Tribunal been giving directions in relation to an appeal, it would have made the orders on an 'unless' basis, thus making it plain to Mr Scott that the time has come for him fully to co-operate with the progress of the case if he wishes to pursue it . If he does not wish to pursue it, then he should withdraw it. It seems to me not an option open to him to delay these proceedings unnecessarily, as he appears to have being doing in the past.

I grant liberty to apply to the Employment Tribunal for further directions by either party at any time on notice. I substitute these directions in place of the directions which were made on 21st August 1998. The purpose behind these new directions is to ensure that there can be no room for argument as to the way Mr Scott must conduct himself in future in this litigation if he is to be allowed to pursue it.

It would be sensible if the appointed expert could seek to agree a medical report with the appellant's own general practitioner or psychiatrist, as the case might, so that there will be no need at the hearing for there to be any expert evidence. If it becomes necessary to consider medical evidence at the hearing, the Employment Tribunal may wish to consider whether it would be appropriate for such evidence to be received on affidavit, so as to avoid the expense of a witness having to travel from Glasgow.

If the appellant is not able to travel to the Employment Tribunal to pursue his complaint, because he still remains unfit to do so, then it would be quite open to the Employment Tribunal to determine this case on the basis of written representations and written evidence, since it would appear to me that Mr Scott is quite capable of making written submissions and of giving written evidence.

In conclusion, therefore, the purpose of these directions is to ensure that this case now comes to trial in a speedy and orderly manner having regard to the three interests to which I referred at the outset of this judgment.