United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W HANSEN (of Counsel) Instructed By: Hewitson Becke & Shaw Shakespeare House 42 Newmarket Road Cambridge CB5 8EP
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PETER CLARK:

1. The appellant, Mr Tahir, commenced these proceedings in the Bury St Edmunds Employment Tribunal on 27 August 1998. He complains principally of disability discrimination on the part of his employer, the respondent Cyberlife Technology Ltd.
2. It is his pleaded case that during his employment as an IT manager he contracted repetitive strain injury (RSI) and carpal tunnel syndrome (CTS) attributable to his work. His condition was diagnosed on 5 March 1998.
3. He alleges that he is disabled within section 1 of the Disability Discrimination Act 1995 and that the respondent failed to follow its own Health and Safety Policy in failing to assess his health, failing to consult him, failing to assess whether he needed special equipment, failing to provide all necessary equipment, thereby causing him to suffer further injury leading to his going off work sick on 8 June 1998.
4. Specifically, he alleges that the respondent failed to make reasonable adjustments as required by section 6 of the Disability Discrimination Act.
5. The claim is resisted. By their Notice of Appearance dated 24 September 1998 the respondent denies that the appellant suffers from a disability within section 1 and denies that if he had a disability the respondent had knowledge of it so as to be under a duty to make adjustments under section 6 of the Disability Discrimination Act. Alternatively, it is contended that all necessary steps were taken by providing him with all relevant equipment.
6. On 19 July 1999 a Chairman granted a stay of the tribunal proceedings pending issue of High Court proceedings by the appellant claiming damages for personal injury.
7. The tribunal of its own motion called a directions hearing for 26 April 2000. On that occasion the parties consented to the matter being listed for a three-day hearing before the tribunal and a listing has now been given commencing on 20 September. We are told by Mr Hansen that on that occasion the appellant's advisers specifically reserved the right to apply for a further stay of proceedings following issue of the High Court proceedings.
8. On 24 May 2000 the appellant issued particulars of claim in the High Court claiming against the respondent damages for personal injury. The allegation there is that the appellant suffered upper limb injury as a result of the negligence and/or breach of statutory duty of the respondent. The claim is pleaded in detail by reference to expert evidence obtained on behalf of the appellant.
9. In the new style a Defence has been lodged, pleading to and denying the allegations contained in the particulars of claim in some detail.
10. Having issued High Court proceedings the appellant's solicitors wrote to the tribunal on 27 May 2000 seeking a stay of the tribunal proceedings pending determination of the High Court proceedings.
11. By a letter dated 2 June to the tribunal the respondent's solicitors consented to the continuation of the stay on the tribunal proceedings.
12. A Chairman, Mr C. Ash, responded to the application for a stay by a letter from the tribunal dated 6 June 2000. He said this:

"The parties had ample time to issue proceedings. Directions were given BY CONSENT on 26 April 2000 and the matter set down for a hearing over three days. It is not in the interests of justice that that claim be delayed yet again and for a considerable period by the late issuing of proceedings in a District Registry. I see no reason why the High/County Court should be 'embarrassed' by new findings in a matter within, and solely within, the expertise of the Employment Tribunals. Further, I am satisfied that it is in the interests of justice that the disability discrimination claim is tried as soon as possible, the IT1 having been presented on 27 August 1998."

13. Against that order this appeal is brought by the appellant. The respondent does not appear, but by a letter dated 20 April 2000 their solicitors have written supporting the appeal. They submit that the discrimination claim arises out of the same facts as the appellant's claim in the High Court. They point to a risk that any finding by the tribunal on matters of fact may tend to embarrass the High Court and create difficulties with res judicata and issue estoppel.

The Appeal

14. Mr Hansen recognises that we have no general power of review of the Employment Tribunal interlocutory orders. We can only interfere where an error of law is made out. In practice that means that we must be satisfied that the appellant passes the Wednesbury test: see Carter v Credit Change Ltd [1979] ICR 908, 918 (per Stephenson LJ).
15. He takes two points.
16. First, he submits that although the tribunal is entitled, indeed obliged in the interests of proper administration of justice, to consider the question of delay in disposing of proceedings, the Chairman has, on the face of his reasons, failed to take into account a relevant factor, namely that the respondent consented to a stay: see First Castle Electronics v West [1989] ICR 72, 77E per Wood J. There is, he submits, no prejudice to these parties by the delay in hearing the tribunal proceedings when both agree that it is appropriate that the High Court proceedings should be heard first.
17. Secondly, that the Chairman has misunderstood and therefore failed to take into account a relevant factor, that is the potential embarrassment to the High Court judge hearing the personal injury action if material findings of fact, binding on him under the issue estoppel principle, are made by the Employment Tribunal. It is not a question of the expertise of the tribunal in hearing a Disability Discrimination claim being questioned. Rather that there is a potential overlap between the two sets of proceedings in two respects; first, the nature and extent of the appellant's injuries and their effect, secondly the question of risk assessment and remedial measures to be taken which arise in the High Court proceedings and the issue of the respondent's duty to make reasonable adjustments and the equipment provided to the appellant which is material in the tribunal proceedings.
18. In our judgment both submissions are made good. It follows that the Chairman's decision is flawed as a matter of law and cannot stand. Having considered all the factors arising in this case we shall exercise our powers to substitute an order that the tribunal proceedings be stayed pending further order by the Employment Tribunal.
19. The appeal is allowed.