United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DAMIAN McCARTHY (of Counsel) Instructed by: North Lambeth Law Centre 14 Bowden Street Kennington London SE11 4DS
For the Respondent	JOHN CAVANAGH QC (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS


 


MR COMMISSIONER HOWELL QC

1. We have before us two appeals in the same case by Mrs Sandra Andreou against Decisions of the London (Central) Employment Tribunal made in her proceedings against the Lord Chancellor's Department alleging racial discrimination and victimisation in the course of her continuing employment as an Usher with the Court Service, a position she has occupied since 1989. The two Decisions against which she appeals are:

(1) First, the Decision of the Tribunal on 6 November 2000, set out in Extended Reasons sent to the parties on the following day, granting an adjournment of only a week in her proceedings which had been set down to start on 6 November 2000 for a ten day hearing, and ordering her to produce within a three-day deadline detailed medical evidence to support and explain her contention that she was unable to attend the hearing because of her medical condition.

(2) Second, their decision on the following Monday, 13 November 2000, set out in Extended Reasons sent to the parties on 27 November 2000, to strike out the whole of her Originating Application when it came back before them, purportedly under Rule 4(7) of the Employment Tribunal Rules of Procedure 1993 for non-compliance with the Tribunal's earlier Order as to medical evidence.

2. The background to these appeals is that the Applicant, Mrs Andreou, presented her Originating Application on 19 November 1998 complaining of racial discrimination, harassment and bullying in the treatment she received from her supervisor and colleagues on the Court staff at Wood Green Crown Court. She alleged that this had led to a breakdown in her health and subsequently added an additional complaint by amendment on 12 February 2000, alleging victimisation in the actions of the Respondents when they attempted to deal with the situation by getting her to return to work at a different Crown Court in Edmonton. An internal enquiry in the meantime had found on 11 June 1999 that there had been a breach of the Lord Chancellor's Department's Equal Opportunities Policy at Wood Green Crown Court and that:

"there had been a general acceptance of racist and sexist humour over many years which has been allowed to continue as a result of inadequate management".

3. Following a directions hearing on 25 April 2000 the case was listed for a ten day hearing commencing on 6 November 2000 and the Notice of Hearing was sent to the parties on 14 July 2000. Subsequently in October 2000 both parties sought a stay of the proceedings which was refused by the Tribunal, and around the end of October 2000 the trade union which had previously been advising and representing Mrs Andreou withdrew from the case. She then sought an adjournment of the hearing, now only one week away, on the ground of the loss of her representation and her own inability for medical reasons to attend and cope with the proceedings for herself. She supported this with a medical certificate from her GP confirming that she was too ill to attend work for the next thirteen weeks through anxiety and stress. That application was refused by letter. It was renewed on behalf of Mrs Andreou by a solicitor, Mr Onuegbu, on 6 November 2000. He had been very recently instructed and attended the hearing on her behalf, but only for the purpose of applying for the adjournment. He was not in a position to conduct the proceedings on her behalf in her absence.
4. Against the opposition of the Respondents, who appeared by leading Counsel and argued that Mrs Andreou's claim should be immediately struck out as she was not present to prove it, the Tribunal granted an adjournment but for one week only, and on stringent terms as to medical evidence. They recorded that they rejected the application on the grounds of representation, expressing the view that one week was sufficient to secure representation and for a new representative to become fully acquainted with the case and conduct a ten day hearing. They then recorded that:

"7 We next considered the application for an adjournment on the grounds of Mrs Andreou's health. The Tribunal had before it a certificate from her General Practitioner stating that she should refrain from work for 13 weeks from 27 October. The certificate does not say that she is unfit to attend the Tribunal. Nonetheless she is not present and a welfare officer, who was there, said that she did not think that Mrs Andreou could attend today. However, that welfare officer was not medically qualified. We also know that Mrs Andreou has not worked for two years on account of sickness.

8 We are not satisfied that, if we simply adjourn this matter, Mrs Andreou will be in any better state to appeal in six months time when a 10 day case would be re-listed. The medical certificate that we have been supplied with is inadequate."

5. At the appeal hearing we were informed that the welfare officer referred to by the Tribunal is an employee of the Lord Chancellor's Department, allocated to Mrs Andreou in accordance with the Department's normal practice to monitor and assist employees who are away from work for substantial periods through illness or other difficulties. She could be assumed to have a detailed knowledge of Mrs Andreou's case and general state, even though as the Tribunal observed, she was not medically qualified. She was not, of course, an advocate for either side.
6. The Tribunal then recorded the arguments of leading Counsel on behalf of the Respondents against allowing any adjournment of the proceedings, despite the concern about Mrs Andreou's medical difficulties. They said that in order to resolve this, they considered they needed better medical evidence with a view to determining the issue in a week's time on 13 November. Accordingly, as recorded in paragraph 10 of the Extended Reasons of 7 November the Tribunal decided to adjourn until then on terms which included in particular an Order that the Applicant was to produce a medical report by 4 pm on Thursday 9 November 2000:

"…stating in detail the following matters:-

(i) the nature of and prognosis for Mrs Andreou's illness;

(ii) why Mrs Andreou was unfit to attend the hearing on 6 November 2000;

(iii) why, if this is the case, Mrs Andreou is unfit to attend the hearing on Monday 13 November 2000;

(iv) when, if ever, Mrs Andreou will be fit to attend a hearing for a period of ten days consecutively and give evidence for a substantial period of that ten-day period consecutively".

7. They further ordered that depending on the content of the medical report the Tribunal would also consider the Respondents' application to strike out the Originating Applications on 13 November 2000:

"so Mrs Andreou should be prepared to show cause at that hearing why her complaints should not be struck out."

As recorded in the Tribunal's Extended Reasons for their second decision a week later, Mrs Andreou's solicitor submitted to the Tribunal on Thursday 9 November, within the time limit set by the Tribunal, a medical report from her GP dated 8 November 2000. This described Mrs Andreou's medical history as a patient of his practice since 1987. It concluded with fresh information, not previously before the tribunal, that:

"On 27 October 2000 she consulted me as she said she was feeling anxious, not sleeping well, lost one stone in weight, having migrainous headache and at times feeling suicidal. For this reason, I referred her to Dr Smith, consultant psychiatrist at St Anne's Hospital, for a domiciliary visit and assessment."

With that information Mrs Andreou's solicitor also submitted a letter dated 8 November 2000 from a Dr Ray of the Psychiatry Department at St Ann's Hospital, explaining that it was not possible for a hospital psychiatric report for Mrs Andreou to be prepared within the time limit set by the Tribunal.

8. As recorded in paragraph 5 of the Tribunal's Extended Reasons for its second Decision:

"By a letter dated 10 November 2000 from the Employment Tribunals the Applicant was advised:

"The Chairman notes that the enclosures with your letter do not cover the matters ordered at 10(a)(ii) (iii) and (iv), and, although a GP's report has been produced it does not resolve unequivocally the points set out in paragraph 10(a)( i)"

The letter went on to warn that the Chairman was considering whether to strike out the Originating Application under Rule 4(7) of the Employment Tribunals Rules of Procedure 1993 and advised the Applicant that if she wished to give reasons why this should not be done she should be prepared to do so at the hearing on 13 November 2000"

On that day, Mr Onuegbu again attended on behalf of Mrs Andreou, instructed only to apply for an adjournment, though to some extent the submissions he made did attempt to address the application for the entire proceedings to be struck out which was then immediately renewed by the Respondents, again attending by leading Counsel. Having heard argument on those issues the Tribunal's Decision (as stated in terms in the record of the Decision itself, followed by the Extended Reasons in the document sent to the parties on 27 October 2000) was to strike out the whole of the Originating Application under Rule 4(7) of the Employment Tribunals Rules of Procedure. The single stated ground for this was:

"non compliance with the Tribunal's order set out in its decision of 6 November 2000 and promulgated on 7 November 2000."

Among the reasons stated by the Tribunal for arriving at this conclusion were that Rule 4(7) of the Rules of Procedure empowered the Tribunal to strike out the whole or part of the Originating Application if a requirement under paragraph (1) or paragraph (3) of that Rule had not been complied with, and that a notice had been sent and an opportunity afforded to the Applicant for her to show cause why that power should not be exercised. In addition, in reaching their conclusion on that issue, the Tribunal had taken a number of matters into account including that:

"10.1 The report of Dr M Pal, Mrs Andreou's general practitioner, dated 8 November 2000 does not state the nature and prognosis for Mrs Andreou's illness. …….

10.3 The final paragraph of Dr Pal's medical report of 8 November reveals that Mrs Andreou went to her GP on 27 October but did not obtain a medical certificate at that time which she made available to the Tribunal [sic]…….

10.4 The fact that Dr Pal has referred Mrs Andreou to a consultant is not something from which this Tribunal can draw an inference that the nature of Mrs Andreou's illness is serious. The reference in the medical report is that Mrs Andreou had been referred to the consultant psychiatrist "for a domiciliary visit and assessment". The report of Dr Pal does not indicate that Mrs Andreou has seen the consultant psychiatrist.

10.5 The letter from the consultant psychiatrist is from Dr Ray and not from Dr Smith, who is referred to in Dr Pal's letter, and makes no mention of Mrs Andreou having seen Dr Ray or Dr Smith.…..

11 Mrs Andreou has not complied with the order of the Tribunal made on 6 November and promulgated in the decision on 7 November. It is not correct to say, as Mr Onuegbu does, that Mrs Andreou has complied because the Tribunal fixed a timetable which the consultant psychiatrist cannot meet. "

9. While founding their Decision solely on the alleged non-compliance with the Tribunal's Order in accordance with Rule 4(7) of the Rules of Procedure, the Tribunal then went on to consider and determine against the Applicant two further matters also fatal to her claim in the circumstances. These were first to refuse Mr Onuegbu's application for any further adjournment of the proceedings for further medical evidence or otherwise, and then immediately to dismiss the Originating Application under Rule 9(3) of the Rules of Procedure on the ground that Mrs Andreou had failed to attend or be represented at the time and place fixed for the hearing. Finally, they determined also to strike out the Originating Application under Rule 13(2)(e) on the stated ground that the Originating Application in its entirety was frivolous and vexatious. The reason given for this was that Mrs Andreou had made a late application for an adjournment and had produced inadequate medical evidence to justify it.
10. Mr McCarthy who appeared for Mrs Andreou on her appeal against both of those Decisions contended that they were in several respects unreasonable and erroneous in law so that they should be set aside. The first Decision was unreasonable in not ordering a more general or at least a longer adjournment in view of the evidence and other information already before the Tribunal on that date. Alternatively, it was unreasonable for them to make the Order they did, directing the production of detailed medical evidence within such an impracticably short timetable. Even if that were not so, the second Decision contained a number of errors of law, of which the most important was that the provisions of Rule 4 of the Employment Tribunals Rules of Procedure, on which the actual Decision given depended, relate to particulars and written answers about the details or content of a party's case, and have nothing to do with the kind of procedural directions made by the Tribunal on 6 November. Consequently the Tribunal had acted outside the power in Rule 4(7) they purported to be exercising in striking out the proceedings.
11. In addition, their decision to strike out the proceedings whether under that power or Rule 13, or to dismiss them for non-appearance of the Applicant under Rule 9(3), was unreasonable. It failed to pay proper regard to the evidence about the Applicant's circumstances as it stood before them on 13 November, by which time it was or should have been apparent to any reasonable Tribunal that Mrs Andreou was genuinely ill and the condition sufficiently serious to have been referred to a consultant psychiatrist, while of course a more detailed assessment and prognosis from a specialist such as would most usefully answer the Tribunal's questions had been impossible to produce within the time. The net effect of these errors, in Mr McCarthy's submission, was that the Tribunal had acted unreasonably in peremptorily striking out Mrs Andreou's proceedings. Their action had wrongly had the effect of denying her a fair hearing of what the Respondents' own internal investigation had shown to be genuine issues requiring to be tried. This was contrary both to well established principles of natural justice and to the provisions of Article 6 of the Convention on Human Rights which had become directly applicable shortly before the dates of these Tribunal hearings.
12. A separate contention in the original Notice of Appeal that because of the identity of the Respondent the Tribunal itself was improperly constituted contrary to that Article was not pursued before us. We should also record for completeness that at the outset of the appeal hearing, the nature of each of our own appointments to the Appeal Tribunal under the Employment Tribunals Act 1996 was expressly raised by us in this context, and it was confirmed that the Appellant had no objection to our hearing the case.
13. On behalf of the Respondents Mr Cavanagh QC, who appeared on the appeals as he had done at the Tribunal hearings below, reminded us of the general and well established principle that it is not generally the function of the Appeal Tribunal to intervene in matters of Tribunal procedure or the exercise of discretionary powers given by the procedure rules to the Employment Tribunal or Chairman hearing the case. Our jurisdiction to do so is limited to cases where it can be clearly demonstrated that there have been errors of law on the part of the Employment Tribunal; and such errors are not demonstrated simply by showing that the Tribunal has reached a judgment which may be characterised as harsh or with which individual members of the Appeal Tribunal might not themselves agree. His submission was that the Appellant's arguments on unreasonableness and perversity of the Tribunal's Decision to refuse further adjournments and proceed by striking out the Originating Application amounted to no more than invitations to the Appeal Tribunal to substitute our own view on whether we would have granted an adjournment in the circumstances before the Employment Tribunal on either of these two Mondays in November 2000, and that was impermissible. He emphasised that the substantive application being made at both hearings was for an adjournment of the proceedings indefinitely, or at least for an extended period, since the reality appreciated by all was that any postponement of a ten-day case meant a further delay of six months because of the state of the lists. Given the general presumption in favour of a speedy and effective disposal of proceedings before the Employment Tribunals, any argument on perversity had to be approached with particular caution here.
14. While not formally conceding the point, Mr Cavanagh readily accepted that the Tribunal's apparent reliance on Rule 4 of the Procedure Regulations, relating to particulars and discovery of documents relevant to the content of party's case rather than procedural matters, was perhaps misplaced. However he submitted that that was immaterial, since there was no doubt that as matters stood on 13 November 2000 the Tribunal had the power under Rule 9(3) and/or Rule 13 to dismiss or strike out the proceedings, and there was no doubt that they had recorded their intention to do each of these things, so that he was able to rely on what they actually did as effective by at least one route.
15. So far as the first Decision to adjourn for a week on 6 November 2000 is concerned we have not been persuaded that the course adopted by the Tribunal was perverse or otherwise erroneous in law. The situation facing the Tribunal on that date, against the background of a very recent withdrawal of the Applicant's trade union representatives amid mention of unsuccessful settlement negotiations, was that they had ten days fixed and available for the full hearing of the merits of the case. Justifiably enough, in our view, they regarded the medical certificate then put before them as insufficient to enable them to decide whether it was possible to salvage at least some part of that hearing, whether it really was essential for the case to be postponed for longer, or for how long that was likely to be. In those circumstances, in our judgment, it was entirely reasonable to fix a timetable, albeit short, in the hope that better evidence could be provided to enable them to take a more informed view on those questions the following week, when five days would still be available so at least some progress might still be made. We accordingly reject the appeal against the first Decision to adjourn for a week for such evidence to be produced.
16. As regards the second Decision on 13 November however, having considered all the arguments put before us, we have reached the contrary view. In the first place the Tribunal, in our judgment, clearly misdirected themselves in purporting to strike out the proceedings under Rule 4(7) of the 1993 Procedure Rules. That power, as pointed out by Mr McCarthy and not seriously disputed by Mr Cavanagh, relates to particulars, discovery of documents, and written answers in the nature of interrogatories for the purposes of clarifying and determining the substantive issues between the parties in the case. It does not extend further to give Tribunals a general power to strike an Originating Application, as this Tribunal purported to do, for alleged non-compliance with directions or Orders of a procedural nature outside those matters.
17. We turn therefore to the supporting grounds relied on by the Tribunal in the alternative in the body of their Reasons, though not in their actual stated Decision. We accept Mr Cavanagh's submission, conversely not disputed by Mr McCarthy, that it was within the power of the Tribunal in the absence of attendance or representation of the applicant (in relation to the substance of the case itself) on 13 November to dismiss the application, subject to complying with the requirements of Rule 9(3). The reason for a dismissal on that basis would then have been that the allegations of fact in the Originating Application, necessary to establish the Applicant's case of discrimination and victimisation, would not have been proved because no evidence had been called in support of them: see Mensah -v- East Hertfordshire NHS Trust [1998] IRLR 531 per Peter Gibson LJ at paragraph 16.
18. However we have been persuaded that any purported exercise of that power, coupled directly as it was with the rejection of any further adjournment, even for a relatively short period to make it possible for more satisfactory evidence about the claimant's condition to be produced, was unreasonable in the circumstances of this case on 13 November 2000. So was any decision to strike out the proceedings under Rule 13(2)(e) on the stated ground that the Originating Application in its entirety was frivolous and vexatious by reason of the failure to produce more complete medical evidence within the timescale set by the Tribunal, even assuming (which we do not need to decide) that the requirements of Rule 13(3) as to a proper opportunity to show cause against it were met. There was, in our judgment, no proper ground or evidence identifiable from the Tribunal's decision to warrant the conclusion either that the complaints made by Mrs Andreou in her Originating Application were themselves inherently frivolous and vexatious, or that the manner in which she and her representative were seeking to obtain a longer adjournment based on the most recent medical evidence and her reference to a consultant psychiatrist for assessment fell within that description.
19. As regards the grounds given by the Tribunal for deciding not to grant an adjournment and instead to proceed to dismiss the entire case under Rule 9(3), we think it is apparent that in substantial measure they took into account the same points that had led them to the defective conclusion to strike out the proceedings under Rule 4(7) for failure to comply with the terms of their earlier Order. Their first stated reason in paragraph 15 of their Extended Reasons in relation to the adjournment and dismissal issues refers back to what they had already said in paragraph 10 in relation to Rule 4(7), about the similarities between the most recent medical report from the GP and the earlier one of July, and in paragraph 15.1 they comment:

"The medical report of Dr Pal of 8 November is exactly the same as that of 31 July 2000 save for the final paragraph which indicates that Mrs Andreou visited her general practitioner on 27 October".

That, in our judgment, substantially misstates the effect of the most recent medical evidence, since it omits to mention by far the most significant points in it: that on her consultation with Dr  Pal on 27 October she had been immediately referred to a consultant psychiatrist for assessment, and the express reference to feeling suicidal. Those in our judgment should confirm to any reasonable person, in conjunction with the other specific details given, that she was considered to be suffering from a serious medical condition even if its precise nature and any psychiatric diagnosis remained to be determined following the specialist assessment, which of course required more time than the tribunal's original directions given in ignorance of these points had allowed.

20. The Tribunal's second reason at paragraph 15.2 that:

"Mrs Andreou has had ample time to produce medical evidence and has failed to do so"

similarly fails in our judgment to take account of what was actually said in the new evidence, and of what we are satisfied was a clear application on reasonable grounds by Mrs Andreou's representative at the hearing on 13 November 2000, for at least some more time for specialist evidence and assessment of her condition now that a Consultant was involved, rather than having her case immediately dismissed with knowledge about her condition still incomplete. In our judgment, in those paragraphs (as in their earlier references to Dr Pal's report in paragraphs 10.1 - 10.5 of their Extended Reasons, where what is said about the medical certificates is also clearly inaccurate) the Tribunal did misdirect themselves about the effect of the medical evidence before them on 13 November 2000; or alternatively failed to take account of its effect in determining that the proceedings should be immediately struck out or dismissed. We are satisfied they thereby acted unreasonably and erroneously in law so that their second decision has to be set aside.

21. For those reasons we allow the second appeal, and set aside the Decision of the Tribunal striking out the Originating Application (or dismissing it, so far as they purported to do so). We remit the case to be relisted for effective hearing, and we direct that this should be before a differently constituted Tribunal. In the interests of all parties and to achieve finality this should now take place as soon as practicable, since happily we were told Mrs Andreou's condition has by now shown an improvement and her recent medical reports indicate she should be fit to return to normal work in the very near future.