United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED
For the Respondent	MR NICHOLAS HILL (Of Counsel) Instructed by: Kirklees Metropolitan Council Legal Services 2nd Floor Civic Centre 111 Huddersfield West Yorkshire HD1 2TG


 


SUMMARY

UKEAT/0119/04/ILB

Striking out for failure to provide particulars and refusing to give consent to disclosure of medical records. Whether such an Order was reasonable invasion of privacy.

UKEAT/0120/04/ILB

Order for disclosure of medical records in disability case. Whether reasonable to make such Order.

HIS HONOUR JUDGE ANSELL

1. This is an appeal by Mr Hanlon who is the Applicant in the proceedings under the Disability Discrimination Act against Kirklees Metropolitan Council and certain of their employees. The appeal relates to interlocutory decisions given on 26 August 2003 by Mr Russell, Chairman (sitting alone) in Manchester and 28 October 2003 given by Mr Verdin, striking out the application on the grounds that Mr Hanlon has failed to comply with the Tribunal direction and oral manner in which the proceedings had been conducted had been unreasonable.
2. Mr Hanlon is not here today. He wrote to this Court on 7 July saying that he did not intend to be present or represented at the hearing and asked to rely on the written submissions detailed below and those documents are in a bundle and have been seen by me. He says that he will be out of the country until the end August and asked that the decision and Extended Reasons be delayed until the end of August to allow him sufficient time to consider and prepare bringing such further appeal.
3. The background to the case is that Mr Hanlon who said at the relevant time had a physical disability relating to his leg was employed by outside contractors and was in charge of the CCTV screens operated by Kirklees which effectively are the local authority for Huddersfield. His employers, it is said by Kirklees, were the relevant security firm which became Chubb. It started as another organisation.
4. Matters concerning his employment came to a head in 2002 when there was a proposed shift change and Mr Hanlon disclosed that not only did he have the physical disability but that he was suffering from a mental condition. There was a temporary change in shift pattern agreed but apparently Mr Hanlon suggested that it had been agreed as a permanent change and from that time onwards the relationship deteriorated and employment came to an end.
5. Mr Hanlon has, acted throughout in person and certainly has written considerable volumes of material throughout and at times making it not always easy to follow or grasp the essential points of his case. The recent history of the procedure commenced before a Chairman, Mr Doyle on 3 April 2003. At that hearing Mr Hill who has represented and attends throughout on behalf of the Respondents attended. Mr Hanlon was not present. There had been enormous amount of discussion with regard to adjustments that might be made to permit Mr Hanlon to participate in the directions hearing without disadvantage. I have not seen all those letters but they are referred to in paragraph 5 of Mr Doyle's decision. Mr Doyle records that the Tribunal has more than willing to make reasonable adjustments so as to accommodate the applicant and indeed his carer, was his wife. The case was in fact transferred to Manchester because she had been or was a lay member of the Tribunal division in Leeds.
6. It is not entirely clear to me what the problems were about his attendance. I say that because of the later hearings which are the subject of this appeal today. He did actually attend the later ones but he did attend that earlier hearing. The Chairman recorded that his non-attendance put the Tribunal in some difficulty but in fact went on to deal with the matters that had been raised. They first of all concerned a request for Further and Better particulars of his claim particularly in relation to how he contended that Kirklees were his employer as opposed to Chubb Security Services, the employer that was contended for by the Respondents. Also further particulars was requested of his claim where he had referred to something called a Disability Protection Contract and Kirklees were anxious to know more about that.
7. Thus, in paragraph 15 of Mr Doyle's Order he set out a series of questions under six categories that were to be answered and in addition the Respondents were seeking disclosure of the medical records held in relation to Mr Hanlon by the Occupational Health Adviser that required obviously consent from Mr Hanlon which had not been forthcoming. The Chairman directed that they were relevant evidence and directed that consent had to be given by 22 May 2003. This Order prompted a letter from Mr Hanlon dated 12 April. He suggested that he wanted the orders upon him set aside and needed time to prepare his submissions for this.
8. However in that same letter he appeared to be suggesting that he would be willing to provide the information that was being sought. As a result a letter was sent from the Tribunal setting out a further hearing date as he had requested and setting aside the time table on the basis:

" of the Applicant's proposals in paragraphs 5 & 8 of his letter of 12 April 2003."

The understanding of the Tribunal clearly was that Mr Hanlon was offering to supply the information. He did supply a document dated 25 July 2003. That document was in fact not included in Mr Hanlon's bundle but Mr Hill, with his usual thoroughness has made sure that I have seen that today and certainly in paragraph 8 of that document he seeks to supply the answers that were being sought but fails to do so. Whilst one has not been through it line by line it is apparently clear that he has, as it were, ducked and dived through the questions and not given proper answers.

9. The matter was restored for hearing on 26 August 2003 before Mr Russell. This is the first of the hearings which formed the subject of today's appeal and relates to the refusal to give consent to all the medical records. There had in fact already been such an Order but I suppose that the view was taken that that Order had effectively been set aside as a result of the letter to which I referred so that there was a fresh application for an Order. Mr Russell carefully went through the ACAS for The Code of Practice and the reasons why it has said that the medical records were relevant. In paragraph 7 he came to the conclusion that the records held by the Occupational Health Adviser have relevant documents for the case. He found that they went to the issue of the knowledge or imputed knowledge of the respondent and were clearly relevant to the issues in the case.
10. The decision had made reference to the fact that Mr Hanlon had offered that a report should be prepared by the Occupational Health doctor but should exclude the matters that the Applicant did not wish to be included and the Chairman pointed out that this was not a proper way of conducting litigation. He said that it was not in the interest of justice that one party should be allowed to decide, what evidence he wants to be disclosed. Mr Hill had invited the Tribunal to strike out the application on the basis that the Appellant had already refused to provide the report. The Chairman declined to deal with that application at that stage and in fact imposed a stay on the proceedings until the Applicant was prepared to consent to the disclosure of these records and ordered a further hearing on 28 October to review the matter, warning him that if he did not consent to the disclosure he faced the possibility of an application to strike out.
11. Thereafter, Mr Hanlon failed to give his consent and indeed continuously failed to provide the Further and Better Particulars that had been originally requested and which he had promised to give. A hearing was arranged before Mr Verdin for 28 October and that is the second Order which forms today's appeal. Prior to that hearing Mr Hill had submitted skeleton arguments. This in fact had been suggested at the previous hearing and in that skeleton argument he made it clear that his application to strike out on 28 October was based on a two-fold attack, the failure to give consent for the medical records to be disclosed and also the failure to provide the Further and Better Particulars. Mr Verdin went over the history that I have outlined and repeated that was important for the medical records to have been disclosed. He said this:

"It was the feeling of the Tribunal that Mr Hanlon is clearly concerned with a sense of injustice over his treatment but this concern is obscuring his ability to see the narrower issues which the Directions Hearing had been concerned with. Whilst having every wish to assist Mr Hanlon wherever possible this Tribunal is concerned with its need to hold the balance between the parties and to make decisions which enables the respondent to prepare its own case."

12. Mr Hanlon had made it quite clear before Mr Russell that he did not intend to give his consent and that appear to be the situation again in October when Mr Hanlon again appeared. The Tribunal took the view that he had failed to comply with the Order as regards the disclosure of records and effectively had behaved unreasonably in failing to provide the particulars that he had offered to provide in May. The Tribunal continued:

"He had been given every opportunity to provide information and consent and he has appeared unwilling to listen to any of the reasons given by the respective Chairmen for their Orders and his failure makes it impossible for the respondents to know exactly what they had to answer and what were the triable issues. The Tribunal also found that the Applicant's response at the hearing was somewhat "off key"

And for this reason they struck out his application.

13. He now seeks to appeal those decisions and primarily of course the decision to strike out and has referred me to a number of documents that he has filed particularly a skeleton argument filed on 19 March and the rebuttal statement filed on 22 April. I have read through those although as I have said already it has not been easy to try and distil the nature of his arguments. Mr Hill has tried to do so in his very helpful skeleton argument particularly paragraph 13 and it appears to him to him that Mr Hanlon is making a number of points and I will deal with some of them. First of all he says that the failure to set aside the original Order made in his absence was in breach of the rules of natural justice. I do not agree with that. He had every opportunity to attend that hearing and in any event Mr Doyle's Order was indeed set aside on his undertaking to provide this information. It said Mr Russell failed to provide Extended Reasons for a decision not to reconsider or set aside the April decision but that was not the basis in Mr Russell's hearing. It is also said that Mr Russell failed to apply a number of cases to which he has referred but in fact it is not clear at all what proposition he is seeking to advance from those various authorities. He suggests that it was not necessary to make the Order for disclosure of the records because of material that was already in front of the Tribunal had been disclosed and Mr Hill makes the point that all had been disclosed with very limited letters from the Occupational Health Adviser without the background material. I reject these arguments as having no merit.
14. On a number of occasions he raises his right to privacy under Article 8 although that does not seem to have been advanced before either Mr Russell in August or Mr Verdin in October. In any event it is not an absolute right of privacy but it is subject to a protection and rights of others and it seems to me that the balancing exercise which was clearly performed by both Chairmen clearly balances up the right for privacy as regards medical records with the proper conduct of the litigation in this case and I am satisfied that no human rights Articles were unfairly breached. He also refers to various paragraphs of the Code and parts of the Act, most of which are, in fact all are irrelevant to the issues before the Court today. It is said that Mr Russell and Mr Verdin erred in filing a fair a trial was not possible based upon undisputed medical evidence but again they considered those issues and came to a view that it was necessary for this additional material to be supplied.
15. I said I do not propose through each and every argument. Mr Hill has set them out in detail in his skeleton arguments and dealt with them in considerable detail. It has been said often that this Court will be very loath to interfere with properly considered case management decisions even if they lead to an Order striking out. It seems to me that Mr Hanlon has been given every opportunity to deal with what are very straight forward issues namely the consent to the medical records and the answering of the six areas of particulars which were requested and has not advanced in any of his documents any real or cogent reasons as to why he has been unwilling to deal with these matters. Indeed at both hearings before the learned Chairmen he made it quite clear that he was not willing to give his consent to those records for whatever reason he did not disclose.
16. It seems to me therefore that the Orders were properly made for those particulars and/or for the records, that he was given a further period of time to comply with those matters. He was warned as to the consequences and therefore the Order that Mr Verdin made in conclusion in October was in my view amply justified by reason of the totally unreasonable and vexatious conduct that Mr Hanlon had displayed throughout last year as regards compliance with these Orders and I see no reason whatsoever to interfere with the decision that has been taken.