United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J BOWERS QC and MR D READE (Of Counsel) Instructed by Messrs Jones & Warner Solicitors 60 Lombard Street London EC3V 9EA
For the Respondent	MR A SERR (Of Counsel) Instructed by Messrs Grainger Appleyard Solicitors 26-27 Hallgate Doncaster DN1 3NE


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us an Interlocutory Appeal in the matter Miss L. Wilson against De Keyser Limited. De Keyser's IT3, its Respondent's Answer to Miss Wilson's IT1, has been struck out by reason of what the Tribunal below held to be De Keyser's scandalous conduct of the proceedings. De Keyser appeals. Before us today the Company, De Keyser, has been represented by Mr J. Bowers Q.C. leading Mr D. Reade. Miss L.. Wilson has appeared by Mr Serr.
2. The chronology of the matter is as follows. On the 25th April 2000 Miss Wilson presented an IT1 for unfair constructive dismissal and breach of contract. She said that on the 17th January 2000 she had been reduced to tears upon being shouted at by her Area Manager, Petal Kingswell, who had also told Miss Wilson that she was being given a final written warning. That, she said, began a sequence that caused Miss Wilson to be signed off work for stress by her G.P. on the 26th January 2000. The Medical Certificate of the 26th January 2000 that was produced to the employer was signed by a Doctor P.R. Donk. It said that Miss Wilson should refrain from work for 1 month. Miss Wilson forwarded it and later Sick Notes to the Company. She lodged a grievance. She was in difficulties, she said, with the Benefits Agency by reason of the employer not having answered correspondence from that Agency. She said:-

"I have reluctantly provided my notice of resignation to the company as I believe their failure to deal with my grievance promptly (particularly bearing in mind their knowledge of my dire financial situation) has broken down any trust and confidence which could have remained. This is particularly so bearing in mind the serious complaint against Petal Kingswell and the Respondent's knowledge of the ill-health I have suffered due to these events."

A little later she concluded:-

"I contend that I was constructively dismissed and that the dismissal was in all the circumstances unfair."

3. On the 5th May the Company lodged its IT3. A firm of Consultants rather than of solicitors was acting for them. The IT3 is brief and does little more than indicate that the IT1 was being resisted.
4. On the 11th August 2000 Dr Donk made a further report to Miss Wilson's Solicitors saying, inter alia,:-

"The depressive illness Miss Wilson has been suffering with since the end of last year, to my opinion, has been caused by stress related to work. From the onset it was clear that Miss Wilson was bullied at work and that the demands of her employer pushed her past breaking-point. Miss Wilson is on anti-depressant medication, she has Counselling and she has been seen by Dr J. Pilgrim, Consultant Psychiatrist at Doncaster Royal Infirmary. Although Miss Wilson has been improving steadily, I do not expect a full recovery for months to come."

5. On the 22nd August 2000 Directions as to the further conduct of the case were given at the Employment Tribunal by a Chairman sitting alone, Mr J.A. Pickard. It had transpired that Miss Wilson was intending to rely on medical evidence; more specifically, to rely upon the Report which we have just cited. The employer wished to look into the medical side of the case. The Order made at that Directions hearing included:-

"(ii) The Applicant having lately produced a letter from her Doctor regarding her state of health must bring the Doctor to the Tribunal hearing as a witness if it is intended to use the letter in its present form.

(iii) The Applicant having given her consent shall be seen by an Occupational Heath Specialist appointed by the Respondents and his or her Report shall be produced to the Applicant and the Tribunal together with a copy of the letter giving instructions for such Report. All statements to be exchanged at least 14 days before the day fixed for the hearing and preferably much sooner."

6. On the 25th September 2000 the Company's representative wrote to Dr Damian Moran of Occupational Medical Services Ltd.. We have no need to read all of that letter but passages from it need to be cited, as follows:-

"The Respondent finds the Applicant particularly easy to disbelieve, and the opinion of Dr Donk [of] the Applicant's alleged stress-related illness is wholly refuted. The Respondent is aware of several factors and events in the Applicant's private life which were present prior to her resignation on the 18th April 2000. Specifically, the stress-inducing factors in the Applicant's life were ......"

7. The alleged stress-inducing factors are factors such that a lawyer or representative might honestly believe them possibly to have caused or contributed to stress in Miss Wilson. There is no suggestion that the Company's representative did not believe that possibility. They relate to alleged aspects of Miss Wilson's personal life and deal with the death of her brother in very unfortunate circumstances, the publicity given to that, that that had caused her to have been hounded by the Press, a contested custody case as to Miss Wilson's child by her former husband, the possibility of her having conducted and having been found out to have conducted an adulterous affair and the conviction on the 25th January 2000 of a man whom the letter described as Miss Wilson's lover. There is no suggestion anywhere that knowledge of any of these supposedly or possibly stress-causing events (even assuming them to be true) had come to the Company or to the representative in confidence or from Miss Wilson direct or in exercise of the litigation process such as, for example, by way of Interrogatories or exchanged Witness Statements or any such. The letter to Dr Moran continued with the Company's representative's view of the events leading to Miss Wilson's resignation and it continued:-

"The Respondent's position is that all of the Applicant's allegations are cynical and vexatious in the extreme. However as a hypothesis the Respondent considers that in comparison to the Applicant's personal life the alleged actions of the Area Manager were trivial and incapable of inducing a stress-related illness of a magnitude to prevent the Applicant from working for over 8 months at the time of writing. We would like you to conduct a comprehensive medical assessment of the Applicant and to make a critical examination of Dr Donk's finding that the Applicant's alleged stress-related illness is attributable entirely to her former employer's alleged actions. At the time of writing the Applicant has decided not to call Dr Donk to give evidence that can be cross-examined and has decided to withdraw his letter of the medical opinion from her evidence."

The decision not to call Dr Donk and the withdrawal of his letter of medical opinion from her evidence was communicated, it seems, to De Keyser's representative by way of a telephone call or letter from Miss Wilson's solicitors but we have not seen the letter or any notes of the telephone call. There is, however, no dispute that what was said as to Dr Donk and his evidence in the citation above was true. Continuing with the letter of instructions to Dr Moran, it continued:-

"We have no doubt at all that the Applicant will simply deny any causal link between the factors in her private life and her alleged illness. We also believe that the Applicant could exaggerate the effect of her alleged illness. We will be grateful if you would provide us with a comprehensive medical report following your assessment of the Applicant. The copy of the report should be provided to the Applicant at the same time. Your full expenses will be met by the Respondent. We also be grateful if you will express an opinion as to whether or not the alleged actions of the employer would have been capable of inducing a stress-related illness in a person with normal resilience."

8. A copy of this letter of instructions to Dr Moran was sent, as the Directions Order had contemplated, to Miss Wilson's solicitors. The Order, unfortunately, had not provided for it to be sent to Miss Wilson's solicitors before being sent to the doctor. It was sent to the doctor.
9. On the 26th September 2000 Miss Wilson's solicitors, having read the copy of the letter sent to them, wrote to the Employment Tribunal objecting to Miss Wilson's attendance before Dr Moran. They said:-

"We cannot stress enough to you that we find the tone and content of this letter to be reprehensible, wholly inappropriate and prejudicial to the Applicant's rights to have an impartial medical examination. We consider that the manner in which this gentleman has sought to influence this medical practitioner makes it entirely inappropriate for Miss Wilson to attend before Dr Moran."

10. They continued by suggesting that, if it had to be that Miss Wilson was required to attend Dr Moran following what they regarded as a prejudicial letter of instruction, there might need to be an appeal to the Employment Appeal Tribunal. They continued, having supplied to the Employment Tribunal a copy of the instructions to Dr Moran, that:-

"With the greatest of respect, we consider all of the above named [which were features of the letter of instruction to which objection was taken] to be highly prejudicial to the Applicant and do not consider how the Applicant can possibly attend before this practitioner. In the alternative we will consider that, if the Respondent wishes to have the Applicant examined, the Respondent and the Applicant should each submit the name of a consultant, a fee quotation and a CV. The Tribunal should then determine who should be instructed. Alternatively, and at the very least, there should be a joint letter of instruction in the terms attached to this correspondence."

It is notable that Miss Wilson's solicitors were not seeking a striking out of De Keyser's IT3.

11. On the 5th October 2000 the Regional Chairman of his own motion caused a letter to be written to the parties. It said:-

"The Regional Chairman Mr Sneath has reviewed the file on this case and has decided that it is necessary to hold a hearing to determine whether or not the Notice of Appearance should be struck out under Rule 13 (2) (e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 on the grounds that the manner in which the proceedings have been conducted on behalf of the Respondent has been scandalous and in breach of Article 8 (right to respect for private and family life) ECHR and the Human Rights Act 1998 having regard to the contents of the letter of the 25th September 2000 addressed to Dr Damian Moran. This will be held in Sheffield on the 24th October 2000 at 10.0 a.m.. Please treat this letter as formal notification of the hearing."

12. Rule 13, under the heading "Miscellaneous Powers", provides at (2) that a Tribunal may

" (a) ...........

(b) ...........

(c) ............

(d) ............

(e) Subject to paragraph (3), at any stage of the proceedings, order to be struck out any Originating Application or Notice of Appearance on the ground that the manner in which the proceedings have been conducted by or on behalf of the Applicant or, as the case may be, the Respondent has been scandalous, frivolous or vexatious; .......

(3) Before making any order under sub-paragraph (d), (e) or (f) of paragraph (2) the Tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; ...."

Hardly surprisingly, and, we would think, not only because the Rules were framed in 1993, Rule 13 (2) (e) makes no reference to a striking out for failure to comply with the Human Rights Act 1998.

13. On the 24th October 2000 there was a hearing before the Employment Tribunal under the Chairmanship of Mr G.R. Little. On the 2nd November 2000 the decision was sent to the parties. The decision was that:-

"(1) The Notice of Appearance be struck out on the ground that the proceedings have been conducted in a scandalous manner and in breach of the Human Rights Act 1998.

(2) The Respondent shall pay the costs of today (but not incidental to today) on the standard basis and those costs, if not agreed are to be the subject of a detailed assessment by the County Court."

14. Miss Wilson was represented that day by Counsel. The employer was represented by Mr Pollard of Pollard Associates, the representative who had acted throughout for the employer, De Keyser, and who had drafted the letter of instruction to Dr Moran.
15. Very sensibly, the Chairman had thought fit to have the matter considered by a panel of 3. The Tribunal recognised that whether Miss Wilson had suffered from stress and, if she had, whether it was work-related, were questions that did arise in the proceedings. They said:-

"Within the particulars of her claim she alludes to suffering from stress and alleges that this stress was caused by the actions of the Respondent. ........ At a Directions hearing on the 22^nd August 2000 Mr Pollard represented the Respondent whilst the Applicant appeared in person. On that occasion it was confirmed that the Applicant had given her consent to be seen by an Occupational Health Specialist from whom a report was to be obtained by the Respondents and at their cost. There was no direction that it should be a joint instruction."

The Tribunal then turned to what we might conveniently call the "Moran instruction letter". The Tribunal does not refer to any allegation having been made by Miss Wilson's solicitors that the letter had been scandalous, vexatious, frivolous or in breach of the Human Rights Act. It had remained a case where the matter was being dealt with by reason of the Regional Chairman having directed it of his own motion. The Tribunal recognised that medical evidence was not entirely irrelevant. They said:-

"Because of the way in which the Applicant has put forward her claim we cannot say that the issue of medical evidence is entirely irrelevant. That was clearly acknowledged by the Tribunal which dealt with the Directions hearing. However the issue before us is not as to the principle of medical evidence but an examination of the way in which the Respondent has gone about obtaining that evidence."

It was Miss Wilson's case that:-

"The net result of the letter of instruction was to "nobble" the doctor."

16. We need to cite a number of passages from the Tribunal's decision as follows:-

"Accordingly having given a detailed consideration to the letter of instruction and particularly having a regard to the matters drawn to our attention by the Applicant, we have little hesitation in concluding that the writing of that letter was scandalous conduct. We agree that the vast bulk of that letter contains irrelevant material or at least irrelevant for the purpose to which it was applied. Depending on the content of a report which might have been prepared following a proper instruction to the doctor it may well have been open for the Respondent to pursue certain of the matters contained in the letter of instruction by cross-examination. However at that stage it would still have been necessary for the Tribunal hearing such evidence to consider its admissibility in the light of the 1998 Act. We consider that it was entirely inappropriate for this matter to be put into the letter of instruction and the only purpose that this could achieve would be to prejudice the doctor to the disadvantage of the Applicant. There are also matters in the letter of instruction which are clearly abusive. Again they are matters which perhaps would be allowed in cross-examination in the course of a hearing but we do not consider that they are proper matters to impart to a third party, let alone one who is then expected to prepare a neutral and impartial report for the Tribunal's assistance."

A little later they continue as follows:-

"We take the view that the Respondent was entitled to have a medical report to assist its defence of this complaint. To that extent it would be appropriate for the Applicant's privacy to be infringed albeit primarily within the doctor/patient relationship. We do not consider that the Applicant had waived all rights to privacy when she gave consent to the medical report. ...... She cannot be regarded as having consented to a letter in the terms of this letter of instruction being written. "

That is an odd notion to mention as no-one had suggested that she had consented to the Moran instruction letter. Her solicitors had immediately opposed its use and the whole point, surely, of the direction at the Directions Hearing that her solicitors should be sent a copy of it was so that they could intervene to raise objections if she wished.

17. Mr Pollard, the employer's representative, had argued at the hearing:-

".... That much of what [the letter] said about the Applicant in relation to her brother and her lover was already in the public domain. We take the view that this is not in itself a defence to what is properly to regarded as a subsequent investigation into private matters."

The Employment Tribunal is there considering not the Moran instruction letter but, apparently, a later investigation which had not only not happened but manifestly would never happen.

The Tribunal continues:-

"Accordingly there is also a breach if previously publicly aired matters are then raked over."

No authority is given for that proposition, still less for the view that there could be some form of breach where, as it would be here, any "raking over" would be under the control of a Tribunal or Court.

The Tribunal concluded this part of the reasoning as follows:-

"Accordingly in ordering, as we do, that this Notice of Appearance should be struck out, we appreciate that we have a discretion, having found that there was scandalous conduct, but consider that it is appropriate to exercise that discretion."

18. The question of costs then arose, directly as a consequence of the finding of scandalous behaviour. The Tribunal said:-

"Having regard to our finding and, noting that whilst scandalous behaviour is not referred to within the costs' rule, nevertheless reference is made to abusive or otherwise unreasonable conduct, we had little hesitation in deciding that our costs' jurisdiction could be exercised."

19. We have heard argument both as to what one might call truly indigenous law and that deriving from the European Court of Human Rights, the European Court of Justice and what is now our own domestic provision by way of the Human Rights Act 1998. Mr Serr and the Tribunal set some store by Article 8 which provides:-

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Human Rights Act 1998 came into effect on the 2nd October 2000. The Moran instruction letter was sent on the 25th September 2000. It was written by an employment consultant acting for a company that could not be regarded as a public authority. It was written to a doctor in respect of whom it has not been asserted that he would be free from the usual requirement as to medical confidence. It contained no reference to any information derived surreptitiously, by deception or at all directly from Miss Wilson nor any information derived by way of legal process nor any given by Miss Wilson in confidence. We have not been addressed as to whether or not it was defamatory but we have been addressed as to considerations said to arise under Article 8. We do not find that MS -v- Sweden 3 BHRC at 248 (1997) in the European Court of Human Rights assists Miss Wilson. There medical records which under Swedish law were regarded as containing confidential material (as they would be here) were passed without the complainant's knowledge from one public authority (the doctor employed by a public authority was taken as representing a public authority - page 232 d-e) to another public authority. Even so, as MS had claimed compensation, as it was difficult, in the absence of objective information from an independent source, to determine whether her claim was well-founded and as the recipient of the material was itself bound to keep it confidential, it was held there was no breach of Article 8.

20. By contrast one sees that Miss Wilson's case was even less likely to attract protection under Article 8; no public authority was concerned as a disponor or as a recipient; no confidential material was concerned and the recipient doctor would have been bound by conventional medical confidence. Moreover, Miss Wilson's solicitors were to see the Moran instruction letter and she was free to resist, as she did, its being acted upon in the sense of its leading to a requirement upon her to attend for examination. As in MS's case, it was going to be difficult, in the absence of objective information from an independent source, to determine whether her claim was well-founded. In the circumstances we have found it impossible to discern any actionable breach or, indeed, any breach of Article 8. That being so we have no further need to leave these shores in order to deal with the case.
21. Accordingly we proceed as follows. Firstly, it is in our view an error of law for an Employment Tribunal, when exercising a discretion, to leave out of account material which should have been taken into account or to take into account matter which should have been left out. That is common ground. Secondly, if that can be shown to have occurred, then the Employment Appeal Tribunal is at liberty to set aside the exercise of the discretion as being in error of law. Thirdly, if the discretion is thus set aside, the Employment Appeal Tribunal can either remit the matter for fresh or further consideration by the Employment Tribunal or, if the case is plain enough on the material before the Employment Appeal Tribunal, the Employment Appeal Tribunal can itself exercise the discretion that would otherwise have fallen for exercise by the Tribunal below.
22. Approaching the Tribunal's reasoning with that in mind, we look at the passages where they purported to be considering their discretion. We do find both material that was taken into account which should not have been and, perhaps even more importantly, material left out of account which should have been taken into account.
23. As for the matter which should not have been taken into account but was, we revert to the passage where the Tribunal said:-

"The Respondent has also argued that much of what [the Moran instruction letter] said about the Applicant in relation to her brother and her lover was already in the public domain. We take the view that this is not in itself a defence to what is properly to be regarded as a subsequent investigation into private matters."

The Tribunal is there looking at the matter as if a subsequent investigation into private matters was either the matter they were having to consider or was inevitable. But no doctor's examination of Miss Wilson on behalf of the employer had taken place. It could not take place without her attending for it. The fact that one doctor had been instructed in a manner that gave great offence at several levels did not preclude the later and correct instruction of another doctor. The Tribunal had it well within its power to ensure that there should be no examination by Dr Moran and no offensive instruction of some other doctor. It could have prescribed that Dr Moran should not be heard in evidence, that the Company, if it wished to adduce medical evidence, should instruct some other doctor who had not seen and was not to see Dr Moran's instructions and it could have prescribed that the instructions to the new doctor should not be sent out unless and until approved either by the employee's solicitors or, failing that approval, that of the Tribunal itself. It was quite wrong to describe the position as one "properly to be regarded as a subsequent investigation into private matters".

24. As for matters not taken into account which should have been, the Tribunal nowhere in the course of their exercising their discretion asked themselves whether a fair trial of the issues was still possible. In a case usefully drawn to our attention by both sides' Counsel, namely Arrow Nominees Inc -v- Blackledge [2000] 2 BCLC 167 the Court of Appeal had before it a case where the Judge below had more than once declined to strike out the proceedings on the basis that whilst one party had, in the course of discovery, disclosed forged documents and had lied about the forgeries during the trial, a fair trial was, in his view, still possible. We pause to reflect on the magnitude of the abuse there in comparison with Mr Pollard's and De Keyser's. Whilst in other respects the context of the Arrow Nominees case is very different, there are passages in the judgment in the Court of Appeal of relevance. Thus at page 184 there is a citation from Millett J.'s judgment in Logicrose -v- Southend United Football Club Ltd (1988) The Times 5th March 1998 as follows:-

"But I do not think that it would be right to drive a litigant from the judgment seat without a determination of the issues as a punishment for his conduct however deplorable, unless there was a real risk that that conduct would render the further conduct of proceedings unsatisfactory. The Court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice."

In Arrow Nominees Chadwick L.J. adopted those observations in a passage which, although directed to discovery, is of more general application. Thus at page 193 g-h one finds:-

"But for my part I would allow that appeal on a second, and additional, ground. I adopt as a general principle, the observations of Millett J. in Logicrose ... that the object of the rules as to discovery is to secure the fair trial of the action in accordance with due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules, even if such disobedience amounts to contempt for or defiance of the Court, if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the processes of the Court as to render further proceedings unsatisfactory and to prevent the Court from doing justice, the Court is entitled, indeed, I would hold bound, to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the Court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the Court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke."

Later, Ward L.J. speaking of the risk of a fair trial not being possible said at p. 201:-

"It undoubtedly is a factor of very considerable weight. It may often be determinative. If the Court is satisfied that the failure to disclose a document or the effect of a tampered document can no longer corrupt the course of the trial, then it would be a factor of much less and perhaps even little weight in considering a strike out. Where, in my judgment, Evans-Lombe J. erred, was to treat the question of a fair trial as the only material factor. It was not; other matters have now to be put into the scales and weighed."

25. We must keep in mind, too, that the case at hand is a case not involving disobedience to or failure to perform an order of Court; wilful, deliberate or contumelious disobedience was not in issue. Parts of those passages from Arrow Nominees and in particular the passage from Logicrose show the great importance, in relation to a discretion to strike out the whole of a case where there has been no such disobedience, of an inquiry into whether a fair trial is or is not still possible. Unfortunately there is no sign whatever of that having been considered by the Employment Tribunal in the case before us. Whilst no-one would suggest that it is incumbent upon a Tribunal necessarily to set out every consideration which, in the exercise of its discretion, affects its mind one way or another, to leave out so crucial a factor as the question of whether a fair trial is still possible either indicates that the matter was not within the contemplation of the Tribunal (thereby committing the error of law of leaving out of account something which so obviously should have been taken into account) or, if the matter had truly been in the Tribunal's mind but is omitted from express mention, leaves the Tribunal open to argument that it has failed the Meek -v- City of Birmingham test.
26. Having found matter taken into account which should not have been and crucial matter which should have been taken into account but was not, we must hold that the Tribunal erred in law in relation to the discretion which we have, for the purposes of argument, assumed that it had. We must therefore allow the appeal and set aside that exercise of the discretion.
27. But is the case plain enough on the material before us so that we can substitute our own exercise of the discretion? There is, in our view, no doubt that a fair trial is still possible. There has been no medical examination and the offensive letter of instruction does not, as it seems to us, jeopardise a fair trial as other "uncontaminated" doctors can be appropriately instructed. We bear in mind, too, that the information given to the third party - Dr Moran - had not been acquired by way of the Tribunal proceedings; there was, for example, no breach of any implied or other undertaking in relation to disclosed documents or any corresponding offence. We bear in mind that it was Miss Wilson who instituted the medical considerations by first relying on Dr Donk and then later indicating that he would not be called as a witness, despite the terms of the Directions Hearing of the 22nd August 2000. So long as she persists with a complaint that includes that she suffered stress or other ill-health by reason of the employer's actions or actions for which the employer was responsible she can expect to be required to submit herself for relevant and appropriate medical examination.
28. We cannot take such an examination in such circumstances to be an infringement of any Human Right. Her right to privacy may said to be in opposition to, and needs to be qualified only so far as necessary by, the right to both parties to have a just trial of the issues between them; it is to be borne in mind that it is she who invoked the right to such a trial by bringing the proceedings. She cannot be heard to say that she wants an unfair trial in which her opponents cannot attempt to refute her claims that her stress is related to her work.
29. We bear in mind, as the Tribunal recognised, that depending on who calls whichever doctor or doctors to give evidence, there is likely to be quite appropriate cross-examination or examination-in-chief as to possible sources of whatever stress or other ill-health (if any) Miss Wilson has suffered from other than work-related sources. The doctor or doctors cannot be expected to address that competently without knowing what other possibilities there might be, nor when they might have operated. For example, medical notes of worsening stress could be interpreted quite differently if the reporting doctor could see a correlation between it and, say, the death of Miss Wilson's brother. Unless the doctor is told of the possibility, his cross-examination or evidence-in-chief could go off on the lines "I did not know about that so I didn't look into it" or "I did not ask her about that as I didn't know about it".
30. In the circumstances as to which we have been addressed by both sides, we believe that we do have sufficient material to exercise any discretion which arose under Rule 13 of the Employment Tribunals Rules - see also section 35 of the Employment Tribunals Act 1996. Even assuming, contrary to Mr Bowers' arguments, that the Moran instruction letter was scandalous and that it represented a stage in the conduct of proceedings and hence assuming also that the discretion under Rule 13 arises, a striking out would in our view be entirely disproportionate. In our discretion we elect not to strike out the Respondent's Notice of Appearance of the 5th May 2000. But we do think it appropriate to make fresh directions.
31. We direct that unless Miss Wilson within 10 days of the sending out to her of the transcript of this judgment indicates in writing that she chooses to abandon all allegations that she has suffered stress or other ill-health by reason of acts or omissions of the employer or for which the employer is responsible, then the employer is to be at liberty to instruct a named independent medical expert of appropriate qualification to report on whether she has at any material time suffered stress or other ill-health and, if she has, whether the expert can ascribe the occurrence of that stress or ill-health to particular causes or combinations of causes and, if so, to what causes or combinations. He may be invited to report on during what periods those causes or combinations operated and, as to combinations, the relative causal importance of the respective factors within the combinations. There may be other questions which, upon reflection, the parties would wish to add and they are to be at liberty to do so on the basis that the instructions to the expert are to be drawn by the Company's solicitors and submitted for the approval of the Applicant's advisers before they are sent out to the chosen expert. The identity of the chosen expert is also to be agreed between the parties. The instructions may include a reference to possible causes of ill-health or stress other than work or work-related causes and it should be possible for the two firms of solicitors to devise a form of words that is sufficient to lead to the expert making adequate inquiries yet without seeking to tilt him to or from one conclusion or another.
32. If and when the instructions have emerged as approved, Miss Wilson will need to consider afresh whether she will be willing to be examined by the selected expert on those instructions but will need to be aware that if she declines to be examined it could be (she will need to be advised on this) that adverse inference might be drawn against her.
33. If within the 10 day period which we indicated above, Miss Wilson indicates that she will not submit to any medical examination or inquiry regardless of the identity of the expert or the terms of the instructions then the process of agreeing an identity and instructions need not proceed.
34. Both Counsel before us have agreed that the order for costs made by the Tribunal below stands or falls with the strike out. If the strike out is set aside, as it is, then so also is the order for costs. Accordingly we set aside the order for costs made below.
35. This has been a case in which the conduct of an unqualified representative has had to be considered. The Employment Appeal Tribunal has had occasion in the past to comment that such persons are liable to no disciplinary proceedings as being members of no professional body. The restraints which apply to a solicitor or barrister are not applicable to them as a matter of professional propriety - see Drewery -v- Harmony Healthcare plc (unreported) EAT 866/00. The existence of a body of representatives who are untrained and not susceptible to any professional discipline makes it especially important that some guidance should be given as to how expert evidence should be collected in Employment Tribunal cases. Mr Bowers has asked that we give some directions of general applicability. It may be that the Employment Law Barristers' Association and the Employment Law Association and, perhaps, other bodies operating in the area are giving thought to such subjects with a view, ultimately, to the specification of protocols in relation to expert and other evidence for use by Tribunals generally. However, until that improvement arrives we set out the following guidelines in the hope that they provide a framework for the avoidance of the sort of difficulty that has arisen in the case before us.
36. We must not be thought to be encouraging the use of expert witnesses; their instruction might be thought by some to militate against the inexpensive, speedy and robustly "common-sensical" determinations by the "Industrial Jury" which Employment Tribunals were called into existence to provide. However, there plainly are cases where one or both parties or the Tribunal itself see experts to be necessary or desirable. We wish to procure that where they are necessary the arrangements for them are as economical and effective as is consistent with fairness and convenience. Our guidelines (and they are only that) are for guidance until more formal rules, including provisions as to the costs involved, emerge. They are as follows:-

(i) Careful thought needs to be given before any party embarks upon instructions for expert evidence. It by no means follows that because a party wishes such evidence to be admitted that it will be. There are valuable observations about expert evidence in Whitehouse -v- Jordan [1981] 1 WLR 246 at 256H, H.L.(the expert's evidence should be and be seen to be the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation); Midland Bank -v- Hett, Stubbs & Kemp [1979] 1 Ch 383 at 402 c-e per Oliver J. (doubts as to the use of expert evidence when it strays beyond describing accepted standards of conduct within particular professions) and Re M and R (minors) [1996] 4 All ER 239 at 251-254 C.A. (the need for the Tribunal to keep in mind that the ultimate decision is for it) - see also the very recent cases of Barings plc -v- Coopers & Lybrand, The Times 7th March 2001 and Liverpool Roman Catholic Diocesan and Trustees Inc -v-Goldberg, The Times 9th March 2001. Although the Employment Tribunals' practices and rules differ from those of the High Court, guidance may be found on several subjects by way of analogy from the provisions of the Civil Procedure Rules 35.1 to 35.14 and the associated Practice Direction. A prudent party will first explore with the Employment Tribunal at a Directions Hearing or in correspondence whether, in principle, expert evidence is likely to be acceptable;

(ii) Save where one side or the other has already committed itself to the use of its own expert (which is to be avoided in the absence of special circumstances) the joint instruction of a single expert is the preferred course;

(iii) If a joint expert is to be instructed the terms which the parties will need to agree will include the incidence of that expert's fees and expenses. Nothing precludes the parties agreeing that they will abide by such view as the Tribunal shall later indicate as to that incidence (though the Tribunal will not be obliged to give any such indication) but the Tribunal has for the time being no power as to costs beyond the general provisions of Rule 12;

(iv) If the means available to one side or another are such that in its view it cannot agree to share or to risk any exposure to the expert's fees or expenses, or if, irrespective of its means, a party refuses to pay or share such costs, the other party or parties can be expected reasonably to prefer to require their own expert but even in such a case the weight to be attached to that expert's evidence (a matter entirely for the Tribunal to judge) may be found to have been increased if the terms of his instruction shall have been submitted to the other side, if not for agreement then for comment, ahead of their being finalised for sending to the expert;

(v) If a joint expert is to be used, Tribunals, lest the parties dally, may fix a period within which the parties are to seek to agree the identity of the expert and the terms of a joint letter of instruction and the Tribunal may fix a date by which the joint experts' report is to be made available;

(vi) Any letter of instruction should specify in as much detail as can be given any particular questions the expert is to be invited to answer and all more general subjects which he is to be asked to address;

(vii) Such instructions are as far as possible to avoid partisanship. Tendentiousness, too, is to be avoided. Insofar as the expert is asked to make assumptions of fact, they are to be spelled out. It will, of course, be important not to beg the very questions to be raised. It will be wise if the letter emphasises that in preparing his evidence the expert's principal and overriding duty is to the Tribunal rather than to any party;

(viii) Where a joint expert is to be used, the Tribunal may specify, if his identity or instructions shall not have been agreed between the parties by a specified date, that the matter is to be restored to the Tribunal, which may then assist the parties to settle that identity and those instructions;

(ix) In relation to the issues to which an expert is or is not to address himself (whether or not he is a joint expert) the Tribunal may give formal directions as it does generally in relation to the issues to be dealt with at the main hearing;

(x) Where there is no joint expert the Tribunal should, in the absence of appropriate agreement between the parties, specify a timetable for disclosure or exchange of experts' reports and, where there are 2 or more experts, for meetings (see below);

(xi) Any timetable may provide for the raising of supplementary questions with the expert or experts (whether there is a joint expert or not) and for the disclosure or exchange of the answers in good time before the hearing;

(xii) In the event of separate experts being instructed, the Tribunal should encourage arrangements for them to meet on a without prejudice basis with a view to their seeking to resolve any conflict between them and, where possible, to their producing and disclosing a Schedule of agreed issues and of points of dispute between them;

(xiii) If a party fails, without good reason, to follow these guidelines and if in consequence another party or parties suffer delay or are put to expense which a due performance of the guidelines would have been likely to avoid, then the Tribunal may wish to consider whether, on that party's part, there has been unreasonable conduct within the meaning of Rule 12 (1) (as to costs).

37. These guidelines (which build in part on suggestions from Mr Bowers and also from comments from Morison J., President, in Buxton -v- Equinox Design Ltd [1999] ICR 269) are not intended to and, of course, cannot restrict the Tribunal's powers or their exercise but, it is hoped, will give guidance, especially to litigants in person and representatives without legal qualifications, in order to avoid cases such as the one now before us. Reverting to that, for the reasons we have given we allow the appeal, set aside the decision below, do not strike out the Company's IT3 and give the directions for the further conduct of the case which we have indicated above.