United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M FODDER (of Counsel) Instructed by: Messrs Langley & Co Sun Court 66 Cornhill London EC3V 3NB
For the Respondent	MS N JOFFE (of Counsel) Instructed by: London Borough of Barnet Borough Solicitors Department Town Hall, The Burroughs Hendon London NW4 4LB


 


JUDGE WILKIE QC:

1. This is an appeal by Mr Angus against an interlocutory decision of a Chairman of the Employment Tribunal sitting at London (North) by successive official letters dated 27 June and 4 July respectively, refusing a postponement of hearing of proceedings brought by him against the London Borough of Barnet. The hearing is scheduled to start on 24 July. The initial decision letter was in response to a letter from the solicitor who was acting for Mr Angus dated 22 June seeking a postponement. It set out 3 particular bases for the decision to refuse the postponement. Firstly, the matters are all more than a year old, secondly the personal injury claim is entirely separate from the Tribunal claim, thirdly a stay would delay the Tribunal proceedings for 3-4 years.
2. Upon receipt of that decision, Mr Angus' solicitors wrote further on 29 June. That brought forth the decision letter of 4 July which recorded that the Chairman had considered the letter of 29 June but still refused the postponement but on somewhat different grounds, namely that the personal injury claim is concerned with the cause for the alleged injury; whereas the Tribunal proceedings are concerned largely with the Respondent response to the alleged injury so that the issues are largely different. The letter of 29 June had dealt with a number of the matters, enumerated in the original decision letter but as far as the main thrust of the argument was concerned, in paragraph 2 of that letter they say this:

"The factual matrix for both the personal injury claim and the claims before the Tribunal is identical, save for the way in which the medical retirement was handled. It is our client's case that it was the conduct of Mr Austin and other members of the Respondent's staff that brought about our client's illness and, ultimately, resulted in his dismissal. We would respectively submit that it is impossible to adjudicate on our client's claims for unfair dismissal and disability discrimination without a very serious risk of the Tribunal making findings of fact that will directly impinge upon the issues to be determined by the High Court in relation to the personal injury claim;"

3. The claims brought in the Employment Tribunal are indeed for unfair dismissal and for disability discrimination. The IT1 sets out in extensive form, what is plainly thought to be the relevant history. In particular, that chronology starts on 21 January 1998 and proceeds through until the Applicant's dismissal. During that period he records that there was one period of absence from work from 5 August - 24 August 1998, during which he was signed off sick, prescribed antidepressants. The allegation was made that that was due to intolerable treatment that the Applicant received. He then returned to work and received further allegedly intolerable treatment until, on 15 February, he suffered what was described as a further nervous breakdown as a result of that treatment. He was admitted to a Psychiatric Hospital until 13 March when he was discharged but is still undergoing psychiatric treatment.
4. Thereafter the history sets out the procedure invoked by the Respondent, commencing 18 February, resulting in his dismissal. There is an elliptical reference in connection with the period of illness in August 1998 to that being the Applicant's second period of stress sickness in less than 12 months. In their Notice of Appearance, in paragraph 11 the Respondent records that between 19 November to 12 December 1997 the Applicant had taken sick leave due to stress and we apprehend that that is the self same period to which reference was elliptically made in the IT1. No contention was made in the IT1, nor any admission made in the IT3, that the conduct of Mr Austin or other members of the Respondent's staff brought about that initial period of illness.
5. The IT1 concludes by claiming firstly that the actions taken by the Respondent, pursuant to their incapacity procedure, namely the conduct following his hospitalisation in February 1999, was a sham, actuated by the Respondent's desire, as evinced by one of their employees, to terminate Mr Angus' employment at whatever cost. On that basis, he contended that he had been unfairly dismissed. Secondly, paragraph 20 of the IT1 records further or in the alternative, that he claims discrimination on the grounds of his disability, contrary to the Disability Discrimination Act 1995 and the Code of Practice. He enumerates three bases for that:

a) "They failed to make any or any reasonable attempts to make adjustments to facilitate the Applicant's return to and/or ability to continue to work in his existing grade; and/or

b) They failed to take any or any reasonable steps to make adjustments to enable the Applicant to be retained in employment and/or

c) They acted precipitately in terminating his employment before determining what impact the Applicant's disability would have on his ability to remain in employment in the long term."

6. Some time has been taken before us by Mr Fodder, who has appeared for the Applicant to suggest that the IT1 reflects an allegation of discrimination on the grounds of disability as far back as the 1997 illness. He also relies on a concession made by the Respondent, in response to a direction by the Tribunal at a Directions hearing, which was in terms that they accepted that he is disabled, and referred to a medical report in that respect.
7. In considering the Chairman's decision to refuse a postponement we have to have regard to his exercise of discretion on the basis of the issues presented to him. It would be quite wrong of us to entertain a review of that decision on a wholly different basis. It is clear to us, particularly from the passage in the letter of 29 June, an extract from which we have already referred to, that what the Chairman was concerned with, was a claim being put on the basis that the illness, which was said to constitute the basis of the claims, was brought about by the conduct of Mr Austin and other members of the Respondents staff. Therefore that must relate at the earliest, to the illness in August 1998 and not to the period of illness in 1997 and we deal with this appeal on that basis.
8. We have had referred to us by Ms Joffe for the Respondent in this appeal the decision of this Tribunal in LFCDA v Betty [1994] IRLR 384. On the basis of that clear authority, Mr Fodder has accepted that there is no basis upon which his appeal can succeed insofar as the decision was one not to postpone the unfair dismissal claim. His arguments therefore have been addressed to the question of the Disability Discrimination Act claim. The occasion for the application for postponement is the anticipated imminent commencement of High Court proceedings against the London Borough of Barnet for compensation arising from a personal injury, suffered by Mr Angus in the form of his past and current illness, said to be stress related on the footing as established in the case of Walker v Northumberland County Council. It is in respect of those proceedings that it is said there is a very serious risk of the Tribunal making findings of fact, which will directly impinge upon the issues to be determined by the High Court. Mr Fodder accepts that there is no argument based on issue estoppal, certainly as far as liability is concerned. What he, in effect, says is that there is an overlap in the factual matrix to be covered by both claims. There will therefore be significant duplication of effort and costs. He makes the point that in the High Court a successful claimant will get their costs, whereas in the Employment Tribunal, unless in exceptional circumstances, a successful applicant will not get theirs. Therefore, even though Employment Tribunal proceedings are well advanced in preparation, and the hearing is relatively soon, he says that the Chairman ought to have granted the postponement.
9. Of course, in our role hearing an appeal against a refusal of a postponement, a decision taken by a Chairman in the exercise of his discretion, it is not sufficient for us to be satisfied that we would have granted the postponement had we been considering the application for a postponement. Both sides are at one in agreeing that the power of intervention that we have is limited to those situations:

"Either we must find…that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that that discretion might be properly exercised: or, alternatively, if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

That is a passage in the long standing relevant decision of Bastick v James Lane (Turf Accountants) Ltd [1979] ICR 782 and there is recent guidance to similar effect from the Court of Appeal in the case of Noorani v Merseyside TEC [1999] IRLR 194.

10. In our judgment the second letter is one which discloses neither error of law or misdirection, nor a decision which is or can in anyway be described as perverse. Mr Fodder sought to rely to some extent on the fact that it was couched in different terms from the original letter. In our judgment that simply strengthens it as a decision. The original decision letter contained reasons for the decision to which the Applicant's solicitors responded in pointing out the weaknesses in that earlier decision letter. That letter was considered by the Chairman and, as a consequence, the reason for the decision has changed quite markedly. It is clear that the Chairman no longer considered that the issues involved were entirely separate, nor did he have regard to the length of time since the events happened. Nor did he have regard to the period of stay in order to permit High Court proceedings to run their full course. He concentrated solely on the fact that the Tribunal proceedings are concerned largely with the Respondents' response to the alleged injury, and that the issues are largely different.
11. In our judgment that was a view to which he was entitled to come in the exercise of his discretion. It is right to say that there is some degree of overlap and some of the evidence will be common to both. In our judgment it is right to say, as indeed we perceive Mr Fodder accepted, that in terms of the legal issues to be considered, the issues are largely different. The factual matrix may to some extent overlap. Putting it in broad terms, the Employment Tribunal is concerned with the responses to disability, or, in the case of the unfair dismissal to his illness, whereas the High Court proceedings are concerned largely with how the various manifestations of his illness arose, standing the fact that there had been a prior instance of stress related absence from work in 1997.
12. Whilst some of the period covered and some of the conduct relied upon, will plainly be the same, in our judgment this Chairman came to a decision to which a reasonable Chairman properly directing himself could have come, particularly bearing in mind the advanced level of preparation of these proceedings and the fact that the High Court proceedings are still at the very earliest pre-commencement stage of proceedings. Therefore we feel constrained, whatever we personally might have decided to rule, that there is no sensible basis upon which the Chairman's decision can or should be overruled.
13. One free standing ground of appeal relied on was that the Chairman erred or was perverse in failing to grant the Applicant an oral hearing of his application for a postponement, at which counsel could address Tribunal on the issues referred to in the letter of 29 June. We do not think that there is any basis upon which we can overturn that exercise of discretion. There is no entitlement to an oral hearing; it is a matter of discretion. The Tribunal Chairman had two well structured letters in which the points that the Applicant wanted to make, were properly, and indeed well, made. In the case of 29 June letter it changed the basis upon which the Chairman refused the postponement. There is nothing in either of these letters, which would suggest that the Chairman was doing other than acting as a reasonable Chairman in deciding that he could finally decide this question on the written submissions, rather than inviting oral argument. Therefore, on this basis too, we dismiss this appeal.