United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS I SIMLER (of Counsel) Herbert Smith Exchange House Primrose Street London EC2! 2HS
For the Respondent	MR D MASSARELLA (of Counsel) Employment Rights Unit UNISON 1 Mabledon Place London WC1H 9AJ


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us an Interlocutory Appeal in the matter Mrs Anne McCarthy v Medway Council. The Appellant before us this afternoon is Medway Council which has appeared by Miss Simler. The Respondent to today's Appeal, Mrs Anne McCarthy, appears by Mr Massarella.
2. The case that Mrs McCarthy brings against Medway Council has been developed over a period by a number of originating applications, I think now the position is three in all. She has alleged sex discrimination in an IT1 of 14 April 2000, sex discrimination again in an IT1 of 7 November 2000 and constructive unfair dismissal and sex discrimination in the third and last IT1 of 3 April 2001.
3. The particular aspect of her claims with which we are concerned today is a claim for personal injury. The nature of the personal injury with which the Tribunal is going to be concerned is not that of mere injury to feeling but true personal injury which the counsel before us are agreed will require evidence to be given that she suffers from a clinically well recognised psychiatric disorder or condition.
4. The Appeal is Interlocutory, as we mentioned, and is against an order made on 9 April 2001 by the Tribunal at Ashford; it was the outcome of a hearing of 6 April 2001 before the Chairman, Mr Zuke. The position as at that date was that, as it still is, that an un-split trial, in other words a trial involving both liability and remedy, was fixed to start on 29 May, which now, because of a holiday on Monday, is only one working day away.
5. What Mr Zuke had to deal with on 6 April, which led to his writing on 9 April, was firstly an application that the trial should split as between liability first and remedy afterwards. Secondly, that Medway should be at liberty to obtain a report from a psychiatrist, after, of course, examination of Mrs McCarthy by that psychiatrist. The medical evidence so far referred to in the course of the papers is two-fold, namely a psychotherapist's report on behalf of Mrs Anne McCarthy and a consultant physician's report, also on her behalf. There is at the moment no medical evidence on the Medway side.
6. At the hearing on 6 April there was much discussion and the ultimate outcome was that, - and I am now quoting from paragraph 7 of the letter of 9 April:

"7 The Chairman accepted Mrs Pritchard's submission [that was a submission on behalf of Mrs McCarthy] that at this late stage it would create an uneven playing field if the Respondent obtained a report from a psychiatrist while the Applicant was not relying on a psychiatric report. Mrs Pritchard confirmed that the Applicant consents to an examination by a Consultant Physician. The hearing is due to take place in approximately eight weeks. In the Chairman's view, that allows sufficient time for the Respondent to obtain a report from a Consultant Physician. In the Chairman's view, that strikes a fair balance between the Applicant's wish for the hearing to proceed as to both liability and remedy, and for the Respondent's wish to obtain a medical report at this late stage, despite the fact that it had had an opportunity to obtain a report since June of last year.

8 The Chairman made the following directions:

(1) The Respondent has leave to serve a medical report prepared by a Consultant Physician on or before 18 May 2001.

(2) If the medical evidence is not agreed, the parties have leave to call the authors of the respective consultant's reports to give expert evidence.

(3) The parties are to endeavour to agree a bundle of documents for use at the hearing."

That, as we mentioned, was 9 April 2001 and, quite remarkably, no Notice of Appeal was received by the Employment Appeal Tribunal until, it would seem, 21 May 2001, although it is dated 18 May 2001. This brings into focus the question of delay which greatly troubles us but which cannot be understood short of an explanation of the chronology, which we therefore need to touch upon.

7. The first IT1, as I mentioned, was 14 April 2000. On 26 June 2000, the Chairman made directions in the case that Mrs McCarthy was to provide further and better particulars on or before 20 July 2000 and that she was to provide a medical report by 28 August 2000 and, pausing there, the issue of stress was already identified as one likely to need to be dealt with as it was mentioned in the IT1. Mrs McCarthy was also required to allow Medway to inspect her GP's records and, if it thought fit, Medway had leave to obtain its own medical report. It is true to say that no express time limit was placed upon Medway's leave to obtain its own medical report. Mr Massarella makes the powerful point that it transpired that they did not seek to do so for some eight months.
8. The substantive hearing was fixed for 4-7 December 2000 as early as 26 June 2000. Mr Massarella makes the point that Mrs McCarthy did, indeed, serve her particulars in good time. In August 2000 a report was prepared by a psychotherapist; it was in fact the psychotherapist who was regularly treating Mrs McCarthy at the time. Also a report dated 10 August 2000 was prepared by her General Practitioner. On 21 August 2000, within the time prescribed by the directions, Mrs McCarthy served those reports on both the Medway Council and the Employment Tribunal. The GP diagnosed post-traumatic stress syndrome, the sort of condition that can lead to a finding of personal injury and, of course, in turn, damages for personal injury. At least from that point of 21 August 2000, a possibility of a claim for personal injury should have come to Medway's notice.
9. On 7 November 2000, as I mentioned earlier, a second originating application was made. There were pressures, which I do not think we need to go into, that led to the December fixture being vacated. On 15 November 2000 notice of a hearing was sent to the parties fixing the hearing for four days from 29 May to 1 June 2001, in other words as we said earlier, now only one working day away. The matter was prescribed to go forward for a Full Hearing, in other words one including both liability and remedy.
10. On 11 December 2000 Mrs McCarthy had prepared on her behalf a report from a consultant physician. That report was sent to Medway on 24 January 2001. It perhaps justified a feeling on the part of Medway that the case was more serious than it had hitherto been regarded as likely to become because in that letter, which is a letter from Dr Paul R Powell-Jackson of the Maidstone Hospital, he says that:

"She [Mrs McCarthy] has become traumatised psychologically and cannot tolerate the close presence of men including her husband."

On 21 February 2001 Medway requested a split trial in order to get first a psychiatrist's report. At that time Medway's advisors were its own internal legal department, it would seem, and that department took a rather pessimistic view of the time that would be likely to be necessary to get a psychiatric report. The Applicant, Mrs McCarthy, responded by not agreeing to allow herself to be examined by a consultant psychiatrist. Miss Simler makes the point that, if only she had, then the prognosis so to speak, in legal terms and procedural terms, might well have been very different, but we have to grapple with the facts as they are. Mrs McCarthy did not agree and nothing immediately was done in that respect by Medway.

11. On 5 March Mrs McCarthy's advisors indicated that they opposed Medway's idea that the trial should be split. Medway asked that the May hearing should be confined to liability on 6 March. On 3 April the third originating application was issued, as we mentioned. Then we come to the Interlocutory Hearing on 6 April which led to the letter of 9 April which I have already referred to. There is then an uncomfortable gap until the Medway Council lodged its Notice of Appeal, as I earlier described.
12. The case poses real difficulties for us. On the one hand there has been very substantial delay on Medway's part. Moreover, it is largely speaking, unexplained. For example, one might have thought that given the importance of the case to them and the terms of the hearing on 6 April and the letter of 9 April that an Interlocutory Appeal concerning a hearing on 29 May would have been launched so much earlier than in fact it was. Moreover there is a long period, as we have seen, during which Medway had the opportunity to apply for an order that there should be psychiatric evidence and that Mrs McCarthy should attend in order to furnish the psychiatrist with sufficient material but in which that was not done. Against that, there is the problem, as we see it, that a hearing of both liability and remedy starting on 29 May 2001, may well be a hearing, if it covers both, that is truly insufficiently informed on the medical side of things. It is apparently a possibility that both the consultant physician and the psychotherapist who have so far given evidence on the McCarthy side might not attend at the hearing. Even if they did attend at the hearing and submitted themselves therefore to cross examination, there is a real possibility, one being a psychotherapist and the other being a physician, that there is a sustained attack that neither of them is truly medically competent to address the psychiatric side of things which truly most needs to be laid before the Tribunal. There is a dilemma. There has been delay on the one hand and yet a fair trial which leaves the Tribunal truly fully informed on the psychiatric side of things is going to be difficult to arrange. How, then, to deal with the issues?
13. Miss Simler says that, accepting that error of law has to be shown in the Tribunal's decision before the EAT can interfere with it, that there were here two significant errors of law, both appearing in the passage which we read. First of all, the Tribunal has, as a reason for rejecting that Medway should be able to call a psychiatrist, that doing so would create an uneven playing field because the applicant was not relying on a psychiatric report. This, she says, represents a thorough misunderstanding of the position. At the moment, whilst it is true that there is no psychiatric report on the McCarthy side, there are two medical reports which purport to describe psychiatric conditions. Moreover they are from persons who, unless countered in evidence, might well be accepted by the Tribunal as adequate deponents on psychiatric issues. There is risk, she says, that unless the existing medical evidence is countered by truly expert opposition, the Tribunal would accept the psychotherapist and the consultant physician as able to depose on psychiatric issues. To say that the Applicant was not relying on a psychiatric report, as the letter of 9 April says, whilst strictly true, is not the whole truth because the position is that evidence of a psychiatric nature, albeit not a true psychiatric report, was being relied upon by the Applicant. To that extent, Miss Simler says, for the Respondent to obtain a psychiatric report does no more than level the playing field.
14. The second error of law which Miss Simler seeks to identify is the view of the Tribunal in their letter of 9 April that it suffices that Medway should have the opportunity to obtain a report from a consultant physician. That, said the Chairman, struck a fair balance. But does it, given that on the face of things the nature of the medical evidence that is needed is not that of a consultant physician but of a psychiatrist? Miss Simler therefore argues that the two significant grounds which the Tribunal relies upon are, in fact, in error and, moreover, in error of law.
15. We have had difficulty with this matter. It is obviously a matter where issues are finely balanced. We do accept that the Tribunal's reliance on those two points, neither of which, as it seems to us, is well founded, does justify a finding that the Tribunal is in error of law. What then to do?
16. It seems to us that the most important consideration, once the decision of 9 April is proper to be set aside as being in error (as we now do), is to procure a system under which a fully informed Employment Tribunal can hear the case. As it seems to us, there is no possibility now, the matter having come up so late, of the Tribunal being fully informed on the psychiatric side if the case goes ahead as to both liability and remedy on 29 May. In order for it to be fully informed there needs to be psychiatric evidence, - it matters not, immediately, in what sequence, namely first Mrs McCarthy, second Medway Council then thirdly Mrs McCarthy or whatever - but there needs to be a sequence in which psychiatric evidence is made available to the parties and then to the Tribunal. There is no possible way that could be achieved at a trial that begins on 29 May.
17. Therefore we see that it is appropriate that the trial should be split. This was resisted on 9 April and at the hearing of 6 April but the Employment Tribunal was, of course, not then deciding against the background that we have, the position having developed since, as we have described. Accordingly, what we shall do is to direct that the hearing on 29 May should not be vacated but should continue but should continue, in the first place, spread over the first four days or as many of them are needed, as to liability only. Both sides accept expressly before us today that a liabilities-only hearing does not require any reference to medical evidence, so the date 29 May can be kept and the opportunity can be used and the case can proceed as far as is necessary during those four days to deal with liability.
18. An aspect of the case that has troubled us from the start is that where one has, as we have here, an individual, Mrs McCarthy, who alleges that she has suffered from stress and shows medical evidence to support that, that the very continuance of the proceedings is likely first of all, to prolong stress and perhaps even to aggravate it. There is, indeed, a letter from her general practitioner that touches on that aspect of things and to that extent we have been troubled by the prospect that a split trial may prolong overall settlement of the case and prolong and perhaps aggravate her stress. Of course, we cannot, though, be sure that a split trial would have that result. If, for example, Medway Council wins the issue of liability, then it might even be that the split trial accelerates the end of proceedings rather than delays it. Moreover, whether the present medical evidence on the McCarthy side is treated as if psychiatric evidence or if Medway is denied the ability at the substantive hearing to call psychiatric evidence, it is easy to foresee proceedings being prolonged by appeals. We have done our best to take into account the possibility of prolonged and aggravated stress to Mrs McCarthy but, against that, we have to consider the need for the Tribunal to be fully informed on truly relevant issues and, insofar as they pull in different directions, we have yielded more to the need for the Tribunal to be fully informed because we cannot be sure that the splitting of the trial does indeed prolong the overall outcome of the case.
19. Accordingly, on the chief issue before us - we will ask counsel in a moment what further directions are appropriate - but on the chief issue we direct that 29 May is kept as a hearing date, that it should be for liability only and that directions will need to be given, and they are probably best given now, if possible, for the collection of psychiatric evidence on both sides.

(In the course of discussions with Counsel the giving of directions as to adducing of psychiatric evidence was left to be raised as an issue at the liability hearing on 29 May. Mr Massarella had no instructions at to such questions.)