United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ABOU KAMARA (Appearing under the Free Representation Unit) 6th Floor 289-293 High Holborn London WC1V 7HZ
For the Respondents	MR DESHPAL PANESAR (of Counsel) Instructed by: Education Personnel Management Ltd St Johns House Spitfire Close Ermine Business Park Huntingdon Cambs PE29 6EP


 


SUMMARY

PRACTICE AND PROCEDURE

Postponement or stay

Striking-out/dismissal

Employment Tribunal wrong to refuse postponement application on medical grounds and further wrong to strike out the claims brought by the Claimant under ET rule 18(7)(c) on the basis of his failure to provide a witness statement when he had done so in compliance with the most recent ET Order (Blockbuster v James [2006] IRLR 630).

HIS HONOUR JUDGE PETER CLARK

1. This case has been proceeding in the Watford Employment Tribunal. The parties, as we shall describe them, are Mr George Chang-Tave, Claimant, and (1) Haydon School and (2) Mrs Zia Marchand, Respondents. There is before us for full hearing, with the permission of HHJ Richardson, an appeal by the Claimant against the judgment of the Tribunal chaired by Employment Judge Pettigrew sitting on 7 September 2009, refusing his application for a postponement of the full merits hearing fixed to begin on that day and striking out the whole of his claims under rule 18(7)(c) of the Employment Tribunal Rules of Procedure 2004. That judgment, with reasons, was promulgated on 8 October 2009.

The ET Rules of Procedure

2. The following ET rules appear to us to be potentially material to the issues raised in this appeal. Rule 10 sets out the powers of an Employment Judge to manage the proceedings. Examples of orders which he may make include the power to extend time limits, whether or not time has expired (rule 10(2)(e)); and the power to postpone or adjourn any hearing (rule 10(2)(m)).
3. By rule 18(7) an Employment Judge or Employment Tribunal may make orders striking out a claim or response in the circumstances there specified, including, by rule 18(7)(c), the power to strike out a claim on the grounds that the manner in which the proceedings had been conducted by the Claimant has been unreasonable. Unreasonable conduct in this context includes non-compliance with ET orders.
4. Rule 13(2) provides for the making of unless orders: non-compliance with which will lead to a strike out order without more. In such circumstances a party automatically struck out under rule 13(2) may apply for relief against sanctions by way of review (see now Governing Body of St Albans Girls' School & Another v Neary [2010] IRLR 124, Court of Appeal).
5. Rule 27(5) provides that if a party fails to attend or be represented for the purpose of conducting his case at a hearing at the time and place fixed for the hearing, the Tribunal may dismiss or dispose of the proceedings in the absence of that party, subject to the requirements of rule 27(6) or may adjourn the hearing to a later date.

Procedural History and Background

6. The Claimant, who is of dual heritage and originates from the Seychelles, commenced employment as an ICT Support Analyst at the First Respondent school in January 2003. He was dismissed with effect from 13 June 2008. During his employment the Second Respondent, Mrs Marchand, was similarly employed by the school.
7. By a form ET1, professionally completed and dated 9 August 2008, the Claimant complained of unfair dismissal, wrongful dismissal, racial discrimination, harassment and victimisation. Particulars of his complaints extend to 145 paragraphs covering 23 typed pages. In summary, he alleged a course of racial abuse and harassment, by Mrs Marchand in particular, leading to his raising a grievance on 13 June 2007. That grievance was shortly followed by disciplinary proceedings brought against him. He was finally dismissed for gross misconduct one year later, it being said that he had made video and audio recordings involving colleagues, he claims in support of his grievance, without their knowledge.
8. By their form ET3, the Respondents deny all allegations made by him. A Case Management Discussion (CMD) was held before Employment Judge Southam on 12 January 2009. Directions were given for the future conduct of the case. The issues were identified, although we observe in passing that at paragraph 4.2 that Judge noted that the Claimant does not allege harassment under the Race Relations Act 1976. In fact, that specific claim is raised at paragraph 139 of the ET1 particulars.
9. Materially, the witness statements were to be exchanged by 3 July 2009. A full merits hearing was listed for ten days, commencing on 7 September 2009. The Claimant disclosed two witness statements, those of Asfar Mamud and Serena Butt on 1 July 2009. He did not then disclose his own witness statement believing, he asserts, that it was unnecessary to do so in light of the detailed particulars attached to his form ET1. That belief was mistaken.
10. The Respondent asked for the Claimant's witness statement and time for exchange was extended to 17 July 2009 by order of Employment Judge Metcalf subsequently dated 29 July 2009. We note that no unless order has ever been made in relation to witness statements. The Claimant still did not supply his witness statement and on 14 August 2009 the Respondent informed the Claimant that they would not unilaterally disclose their witness statements. On the same day the Respondent applied to the Tribunal effectively for an unless order in relation to provision by the Claimant of his witness statement.
11. No such order was made but on 2 September 2009 Employment Judge Bedeau ordered the Claimant to provide his witness statement to the Respondent by 12.00pm on 4 September 2009. The Claimant complied with that order providing his witness statement on 3 September 2009. Meanwhile, on 25 August 2009 the Claimant applied for a postponement of the hearing fixed for 7 to 18 September 2009 on health grounds. He said that he had been diagnosed with major depressive disorders and felt unwell. He was then in the care of the Richmond Community Mental Health Team (CMHT).
12. On 2 September 2009, Dr Tamarazians of the CMHT wrote to the Tribunal in these terms:

"I am informed that Mr George Chang-Tave is expected to attend a Tribunal on Monday, 7 September 2009 for ten days.

I would like to bring to your attention that he is psychologically in a very vulnerable situation, therefore I do not advise him to attend.

I do hope you would consider this matter with sympathy."

13. It seems that on 3 September 2009 the Tribunal faxed Dr Tamarazians. We have asked for but have not been shown a copy of that fax, but we infer that the Tribunal were seeking further information as to the Claimant's medical condition and inability to attend the hearing. The doctor replied promptly that day in the following terms:

"Further to your fax of today's date, I am writing to confirm that this gentleman has been under my care for a very long time for Depression and Ongoing Significant Anxiety Symptoms. When he is under pressure his general condition deteriorates significantly therefore it affects him psychologically. I hope this explanation is satisfactory.

Should you have any query, please do not hesitate to contact me."

No further inquiries were made of the doctor by the Tribunal.

14. On the same day Judge Bedeau asked the Respondents for their comments on the Claimant's postponement application and the Respondents applied for an order that the Claimant's claim be struck out due to his unreasonable conduct, complaining about the delay in serving his witness statement and failing to pay half the cost of preparing the trial bundle, £210, as ordered at the CMD held on 12 January 2009. On 4 September 2009 the Claimant wrote to the Tribunal opposing the strike out application.
15. Significantly, we think, on 4 September 2009 the Respondents also wrote to the Tribunal, not opposing the postponement application but asking that the case be re-listed for a CMD to consider the Claimant's fitness to attend a future hearing. The Respondents also reiterated their application for a strike out order.
16. At paragraph 6 of the Pettigrew Tribunal's reasons it is said that the application for postponement was considered on 3 September 2009 and refused on the basis that the case had been standing for approximately a year and related to allegations going back several years before that; that there was no evidence that the Claimant was actually unfit to attend or any prognosis that he was likely to be any better at some future date. We have asked for, but again not been shown, the Tribunal's order of 3 September 2009 refusing the postponement application on paper.
17. At the hearing on 7 September 2009 the Claimant did not appear but was represented by a friend, Mr M I Butt; Mr Panesar of counsel appeared on behalf of the Respondents. Following refusal of his adjournment application on 3 September 2009, the Claimant apparently wrote again renewing his postponement application and referring to historical medical reports, dating back to October 2008 and December 2008, and 23 February 2009, which were before the Pettigrew Tribunal and are included in the material before us.

The Tribunal Decision

18. The Pettigrew Tribunal first considered the renewed postponement application by the Claimant. At paragraphs 9 to 10 the Tribunal said this:

"9. The question that the Tribunal had to address in deciding whether to postpone the hearing was whether there was cogent evidence of the Claimant's unfitness to attend. The evidence of the medical reports is historic and takes the picture as far as February 2009 only. There is then the letter of 3 September 2009 from (sic) indicating the Claimant's vulnerable psychology and in which the doctor says that he has advised the Claimant not to attend. The question is whether this is enough or whether it lacks the necessary cogency to show that the Claimant is not medically fit to attend.

10. There are some other pointers to his medical condition. First he wrote recent cogent letters, he produced a detailed and lucid witness statement and the letter asking for a review of the decision not to postpone the hearing indicated that he has been able to undertake some research on Tribunal procedure. It was therefore clear to the Tribunal that he is capable of attending to his affairs and the Tribunal found in relation to the letter from the Mental Health Team of 2 September 2009, that it did not supply sufficient evidence to show that the Claimant was actually unable to attend today. The application for postponement was therefore refused."

19. The Tribunal then considered further alternative applications by the Respondent. The first being the rule 18(7)(c) application. The second, we characterise as an application under rule 27(5) that the claim should be dismissed. In acceding to the first application of rule 18(7)(c), and in not determining the rule 27(5) application, the Tribunal reasoned at paragraphs 13 to 15:

"13. The original Order for preparation of this case to hearing was given in January 2009 and called for exchange of witness statements by 3 July. That was later extended to 17 July 2009. The Claimant seems to have been able to send statements of other witnesses round about that date. He had several reminders from the Respondents and invitations to agree arrangements for exchange. However, the Claimant did not submit his witness statement to the Respondents before 3 September 2009. The Respondents have clearly been hindered in their ability to prepare for the hearing by virtue of that delay. It seemed clear to the Tribunal that he had been able to write his statement and indeed to obtain witness statements from other witnesses.

14. The Tribunal did not conclude that the Claimant had acted unreasonably by virtue of non-attendance at the Hearing. Although the Tribunal did not have sufficient evidence to show that he was not fit to attend, he may well genuinely have felt he was not up to it and indeed there is evidence that he may have had advice not to attend. The Tribunal did not find there was sufficient indication that his non-attendance was wilful disregard of the Tribunal.

15. In those circumstances the Tribunal found that the Claimant had acted unreasonably in the conduct of the proceedings by delaying the exchange of witness statements and on that ground his claim should be struck out for non-compliance with the Orders of the Tribunal. It is not necessary in those circumstances to determine the Respondents' second application for dismissal on non-attendance at the hearing."

We should add that a review application by the Claimant dated 21 October 2009 was summarily dismissed by Judge Pettigrew by order dated 4 December 2009.

Discussion

20. It is convenient to deal sequentially with (a) the Claimant's challenge to the Tribunal's postponement decision and (b) the strike out order under rule 18(7)(c).

Postponement

21. In a skeleton argument prepared by the Claimant, who is represented today by Mr Kamara under the Free Representation Unit scheme, he referred us to the old cases of Jacobs v Norsalta Ltd [1977] ICR 189 and Coster v Credit Change Limited [1979] ICR 908 Court of Appeal.
22. In our view, as Mr Kamara accepts, those cases are authority for the proposition that the Appeal Tribunal will only interfere with an Employment Tribunal's postponement decision where it is shown to be Wednesbury perverse. Tribunals have a wide discretion in deciding whether or not to grant a postponement. However, that general principle must be read subject to the specific guidance provided by two divisions of the Court of Appeal, on which both Peter Gibson LJ and Arden LJ sat, in relation to applications for postponement on medical grounds. Those cases are Teinaz v London Borough of Wandsworth [2002] IRLR 721 and Andreou v The Lord Chancellor's Department [2002] IRLR 728.
23. In Teinaz the Claimant applied for a postponement on ill health grounds. He enclosed a medical certificate which stated that he should not work for two weeks nor attend the Tribunal hearing, then fixed for the following week, due to stress. An Employment Judge refused the application and at the hearing a representative for the Claimant instructed, only for the purposes of renewing the application, did so. The Respondent opposed the application which was refused by the Tribunal, which then went on to hear the claim in the Claimant's absence and dismiss it.
24. Dr Teinaz successfully appealed to the EAT and the Court of Appeal upheld the EAT's decision. However, in Andreou, in similar circumstances, the EAT decision overruling a postponement refusal by the Tribunal was reversed by the Court of Appeal. The difference between that case and Teinaz, as Peter Gibson LJ observed having also given the leading judgment on Teinaz, was that in Andreou there was insufficient medical evidence to show that the Claimant was unfit to attend. The Tribunal raised four specific questions to be answered by the reporting doctor, none of which were dealt with in response. In these circumstances the Tribunal was entitled to conclude that the Claimant's illness was not sufficiently serious to justify her failure to attend the hearing.
25. The correct approach to such applications is perhaps best encapsulated at paragraphs 21 to 22 of Teinaz where Peter Gibson LJ said this:

"21. A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the Tribunal or the court and to the other parties. The litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the Tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment.

22. If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the Tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Another is that the party seeking the adjournment should be invited to authorise the legal representatives for the other side to have access to the doctor giving the advice in question. The advocates on both sides can do their part in assisting the tribunal faced with such a problem to achieve a just result. I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved."

26. Turning to the medical evidence before the Tribunal in the present case, the Claimant had been diagnosed with a major depressive disorder with severe psychotic symptoms by a locum consultant at Richmond CMHT, Dr Norman Poole, in October 2008. By 15 December 2008 that level of severity was reduced by Dr Poole on review to mild to moderately severe with no psychotic symptoms; an assessment repeated by a second psychiatrist, Dr Pujol, on 23 February 2009. Nevertheless that doctor ordered a continuing medication regime and on 3 September 2009 Dr Tamarazians referred to the Claimant being under his care for a very long time for depression and ongoing significant anxiety symptoms. That was the medical explanation for that doctor's advice to the Claimant not to attend the Tribunal hearing fixed for 7 September 2009 contained in his letter dated 2 September 2009.
27. On 7 September 2009 the Tribunal had no other medical evidence before them. They, nevertheless, formed the opinion (reasons paragraph 10) that since the Claimant was able to produce a detailed and lucid witness statement and write asking for a review of the initial postponement decision he was capable of attending to his affairs. Pausing there, it was not suggested in the medical evidence that he was incapable of managing his affairs. They further found that the letter from Dr Tamarazians of 2 September 2009 did not supply sufficient evidence to show the Claimant was unable to attend the Tribunal hearing.
28. Mr Kamara relies on the guidance of the Court of Appeal in Teinaz for the proposition that here the Tribunal had clear and unequivocal medical evidence that the Claimant was unable to attend the hearing. Asked by the Tribunal for an explanation, we infer as to why the Claimant had been advised in that way (see Andreou) Dr Tamarazians provided it. He was not asked for any further explanation. This is, we think, a paradigm of the case envisaged by Peter Gibson LJ where, however inconvenient to the Tribunal and the Respondent, the principle of a fair trial under Article 6 of the Convention required an adjournment.
29. Mr Panesar submits that the finding by the Tribunal that it did not have sufficient evidence to show that the Claimant was not fit to attend the hearing was a permissible one and, therefore, there are no grounds in law for interfering with the Tribunal's undoubtedly wide discretion to grant or, in this case, refuse an adjournment. We disagree.
30. First, it seems to us that read as a whole the medical evidence revealed that the Claimant had suffered from a major depressive disorder for which he had been under medical care for about one year and that the effect of the hearing on him psychologically was such that his doctor had advised him not to attend lest his condition deteriorated. The case is, we think, on all fours with the principle in Teinaz. Fairness required an adjournment. This was a highly fact-sensitive case which plainly required lengthy oral evidence from the Claimant who then represented himself.
31. Secondly, we are satisfied that the Tribunal took into account irrelevant factors, namely his cogent letters and detailed and lucid witness statement (see paragraph 10). Those factors, it seems to us, did not bear on the uncontradicted medical opinion which the Tribunal received. Further, we see here shades of the erroneous approach taken by the Employment Tribunal majority in the not dissimilar disability question raised in Kapadia v London Borough of Lambeth [2000] IRLR 699 (Court of Appeal).
32. Thirdly, unlike the Tribunal in Teinaz, this Tribunal found, paragraph 14, that the Claimant himself did not act unreasonably in failing to attend. He may well genuinely have felt he was not up to attending the hearing. The Tribunal then go on to say that he may - our emphasis - have had advice not to attend. On the evidence before them he was so advised.
33. In these circumstances we accept the submissions of Mr Kamara. In our judgment the Tribunal was wrong in law, bearing in mind the requirement for a fair trial, to refuse the Claimant's adjournment application in the particular circumstances of this case.

Strike Out

34. We have derived particular assistance from the principles propounded by Sedley LJ in Blockbuster v James [2006] IRLR 630 (Court of Appeal). In summary, where a Tribunal is dealing with an application to strike out under rule 18(7)(c) it is first necessary to determine whether the party responding to such an application is guilty of conduct amounting to a deliberate and persistent disregard of the required procedural steps and/or orders of the Tribunal. If so, whether, secondly, a fair trial is possible.
35. In Blockbuster a strike out order was set aside because the Tribunal had misapprehended the question as to whether the Claimant was in breach of an order to provide further particulars - in fact, he had done so. In the present case we note that nowhere in this Tribunal's reasons is reference made to Judge Bedeau's order of 2 September 2009, which we deem an order extending time for delivery of the Claimant's witness statement until 4 September 2009 under ET rule 10(2)(e) and the fact that the Claimant had complied with that order.
36. Although Mr Panesar raised a number of alleged procedural failings by the Claimant below, to which the Claimant responded with cross-allegations of breaches by the Respondent, he acknowledges that the Tribunal base their strike out order solely on the late delivery of the Claimant's witness statement even although, as we have observed, he was not in breach of a Tribunal order in that regard as at 7 September 2009.
37. Was a fair trial possible? The Tribunal do not answer that important question. The highest Mr Panesar can put his case in submitting that it is implicit that the Tribunal made a finding that it was not possible is the Tribunal's observation at paragraph 13 that clearly the Respondents had been hindered in their ability to prepare for the hearing by virtue of the delay in service of the Claimant's witness statement. However, even that observation suffers from the Tribunal's failure to take into account what we regard as a highly relevant factor, namely the detailed particulars served with the ET1 in respect of which the Respondent then sought and received further particulars.
38. In our judgment it is plain, had the question been asked by the Tribunal, that a fair hearing could have taken place on 7 September 2009 had the Claimant attended. Further, having found that an adjournment ought to have been granted on medical grounds, we are bound to conclude that any impediment to the Respondents' preparation caused by late service of the Claimant's witness statement would have evaporated had the case been adjourned and re-listed for trial, inevitably some months further down the line. Accordingly, we also accept Mr Kamara's challenge to the strike out order.

Disposal

39. It follows that we shall allow this appeal, set aside the strike out order and direct that the case be re-listed for a full merits hearing before a different Tribunal sitting at Watford. We leave it to the Regional Employment Judge to determine, whether on application by the parties or on her own initiative, whether a further CMD is necessary before the full hearing takes place.