United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ABOU KAMARA (Representative) Free Representation Unit 6th Floor 289-293 High Holborn London WC1V 7HZ
For the Respondent	MS JANE TRACY FORSTER (of Counsel) Instructed by: Messrs Thomas Eggar Solicitors 76 Shoe Lane London EC4A 3JB


 


SUMMARY

PRACTICE AND PROCEDURE – Postponement or stay

A Tribunal decided to refuse to postpone a hearing, despite the Claimant producing a letter from a consultant psychiatrist which on any fair reading gave a diagnosis (which, being a severe anxiety and depression affecting concentration, and ability to cope, and requiring urgent medical attention made it effectively impossible for the Claimant as a self-represented person to conduct what was to be a 30 day hearing), expressed the opinion that the Claimant was not fit to plead his case, and offered a reasonable prospect of recovery sufficient to permit this albeit after at least three months. There had been no previous application to postpone.

Held: that (whether the appropriate test was that of Wednesbury review, or fairness of which the appellate court was a primary judge) the Employment Tribunal erred in law in so doing. The Claimant had submitted a fuller, earlier report from the same psychiatrist to the ET, which he refused the Respondent permission to see: observations made that a litigant is not entitled to correspond secretly with a court or Tribunal, and as the way in which an ET should deal with such a situation.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

Introduction

1. This is an appeal against the decision of an Employment Tribunal at East London given on 8 February 2011, written Reasons for which were subsequently delivered more fully on 1 April 2011. The date of the order was 9 February; by that order the Tribunal refused the Claimant's application for an adjournment, proceeded to hear the claims in his absence and, in the absence of any representative, he having none, dismissed his claims. A matter of curiosity is that the Judgment of 1 April shows that the dates upon which the Tribunal sat were from 7 to 10 February 2011, and the Judgment itself records that there had been four days of discussion and deliberation, yet it appears the decision was reached after two. We are inclined to think that, though curious, probably nothing turns upon that, even though the Appellant, understandably perhaps, focussed upon it as one of his grounds of appeal. The effects of the Tribunal proceeding to determine the case in the Claimant's absence under rule 27(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 were serious. The Claimant had been in person, he was unrepresented, and he had said he was unfit to attend; the effect of refusing an adjournment was thus in these circumstances always likely to be equivalent to a strike-out.
2. The underlying claims were claims that had been presented first on 24 July 2009. Although there had been a number of interlocutory hearings, there had been no application to strike out any of the claims. They were claims that the Claimant, Dr Pye, had been discriminated against directly and by harassment on the grounds of his national origin, that he had made public-interest disclosures and had been victimised for doing so, that he had been unfairly dismissed and automatically so, and there were three claims of perhaps lesser substance, in that there was a claim for wrongful dismissal for the period of notice pay that he had not been paid, for unpaid holiday pay, and for the absence of written Reasons for his dismissal.

Procedural background

3. The procedural history of the case was, so far as is relevant that at a case management discussion on 9 June 2010 a hearing of those claims was fixed for 8 February 2011. It was scheduled to last some 6 weeks or so, and 30 days were set aside by the Tribunal for the hearing. The Claimant had complained whilst in employment that effect of the actions of which he complained and the way in which they had been dealt with by the Respondent employer was to cause him to suffer stress, and that stress had caused him to suffer illness. He complained again in early January 2011 that this condition had been exacerbated by what he saw as a late delivery of documents, some 7,000 pages in quantity, by the Respondent, despite the Tribunal earlier having ordered that they should be provided by October. As to that, we have to say, Ms Forster, who appears for the employer before us today, as she did below, has told us that time had been extended, that many of the documents originated from Dr Pye in the first place, and that a number of them were repetitive in nature so that most of the contents if not all should have come as no particular surprise.
4. On 14 January 2011 the Claimant obtained a medical report. He emailed that report to the Tribunal as an attachment to a request that the Tribunal should adjourn its forthcoming hearing because of his ill health. As the Tribunal were to record in paragraph 100 of its Judgment, the email was sent in such a way that the attachment was sent only to the Tribunal. What was common to the Tribunal and to the Respondent was a note that the communication contained strictly private and confidential material relating to his health, which, said the Claimant, an Employment Judge had earlier stated would not be shared with the Respondent given some previous history. This thus amounted to the Claimant sending a medical report that could have no other purpose than to support his application for an adjournment by verifying what he said about his condition to the Tribunal, and seeking to exclude the Respondent from knowledge of it.
5. We interpose some comment. It is not appropriate for any litigant before a court or Tribunal to enter into secret correspondence with the Tribunal itself. This may be obvious from the constitutional position that each occupies. The litigant is a party to adversarial proceedings. The Tribunal has the role of decision-maker: that decision must be fair. It will not normally be fair unless both parties know what might be held against them so that they may argue what should be held in their favour. A person is entitled to know the case that has been made against him or her. Thus, although the litigant here may perhaps be excused because he was in person, we would hope that no future litigant would ever think that it could be right to invite a Tribunal, except in the most extraordinary and exceptional circumstances, to receive a document privately that was not to be disclosed to the other side.
6. This is to be carefully distinguished from the situation in which a litigant makes a without-notice application to the court. This frequently happens, and for good reason, where injunctive relief is sought, for instance in the High Court. But such relief if ordered is ordered on an interim basis with the opportunity within a reasonable and short time thereafter for the Respondent to argue the merits of the case, and it is a prerequisite, first, that the Respondent is given by the litigant a note of the argument and facts put before the court, so that he is fully informed as to what was said, and, secondly, that the disclosure that the litigant makes is full and fair. If it is not, and if he does not inform the Respondent, he will simply lose the benefit he has obtained by the court proceedings. The general position that we have outlined needs also to be distinguished carefully from those cases in which issues such as national security are involved, or those other highly exceptional cases where a special advocate might be appropriate. Needless to say those rarely occur before Employment Tribunals, and this is certainly not one of those cases.
7. What, then, in such circumstances should a Tribunal do? In our view, it has the option of taking one of two courses. First, it may simply decline to receive the secret material and return it to the sender. Secondly, it may inform the sender that within a short period of time the court or Tribunal will reveal the contents to the other party. The period of time gives the litigant the opportunity of arguing that for some special and proper reason there should not be such disclosure. The Tribunal in the present case, as will be seen, adopted, effectively, the first of those approaches. We accept Ms Forster's submission that because the material had been sent electronically to the Tribunal, it could not physically be returned in the same way as a letter might have been, but that the effect of what followed was to tell the Claimant that if he remained unwilling for the document (the medical report, as it was) to be placed before the Respondent, the Tribunal would simply take no notice of it. Since the Claimant relied upon it as medical evidence in support of the adjournment of a hearing that had long been fixed, and since it would be intrinsically unlikely that any Tribunal would accept an application to adjourn a case involving the inconvenience and adverse effects in fairness to the Respondent of adjourning a case of this magnitude at such notice, it would inevitably be the case that without the medical support the Claimant's application would be refused. It is however for the Claimant, if he wishes to keep material secret, to accept that that may be the consequence.
8. Returning, then, to the chronology: materially, the Claimant renewed his application for a postponement by a further email of 2 February. This enclosed a further report from the same health professional who had prepared the secret medical report on 14 January. Again, this was not copied to the Respondent, though the renewed postponement application was. The Claimant made it clear that he was unable to attend the hearing scheduled for 8 February due to his poor state of health. He said he was simply not fit enough to participate in a lengthy and difficult hearing due to what he described as his "extremely poor" state of health. He cited the well-known authority of Teinaz v London Borough of Wandsworth [2002] IRLR 721 CA. The Tribunal responded. Judge Prichard said that if there was to be a postponement (and it was exclusively on medical grounds that the Judge was considering this), it could not justly be done unless the Respondent had a chance to see and comment on the medical evidence upon which the Claimant relied in support of it.
9. At that stage the medical report enclosed in the email of 2 February was, like the first medical report, not disclosed to the Respondent. However, when on 7 February Judge Prichard said to the Claimant by email that the Tribunal could not consider a postponement unless medical evidence was disclosed to the Respondent, or a very compelling or exceptional and well-substantiated reason given for not disclosing it, the Claimant responded with a third email at 15:38 on 7 February. 7 February, we note, was a day upon which the Tribunal had met in order to pre-read for the case scheduled for 8 February; which had not thus far been postponed, despite the two email applications for that course to be taken.
10. It appeared from that third email that the Claimant had indeed let the Respondent see some, at any rate, of the medical evidence upon which he wished to rely. He enclosed the second medical report, that of 1 February 2011. That medical report read as follows:

"Further to my previous letter which was submitted to the Court dated 14^th January 2011, I reviewed Dr Pye on 1^st February 2011. His mental state has deteriorated further. He is suffering from a severe generalised anxiety disorder along with panic disorder and depression with the result that his concentration is poor, motivation is poor and he is not able to complete any tasks. In addition he is suffering from somatic symptoms of anxiety and depression affecting his bowel etc. It is my professional opinion that Dr Pye is not fit to plead his own case at present. Dr Pye's condition is such that he needs urgent medical attention. Under the circumstances, I would again humbly request that his case before the Court be postponed for a period of at least three months. This will allow him the necessary time for his health to recover sufficiently to handle his own case, which is essential given that he has no other means of representation."

11. It is signed by a Dr Bakshi, who was, on the face of the material, and, we understand, is, a consultant psychiatrist. The Tribunal decided notwithstanding that report to reject the application for a postponement.

The legal principles

12. We shall turn to its Reasons after we have set out the law which relates to the grant or refusal of an adjournment in these circumstances. The Tribunal described it, having considered the cases of Teinaz and Andreou v The Lord Chancellor's Department [2002] IRLR 728, a case decided by the same constitution of the Court of Appeal as had decided Teinaz, by summarising the principles in these terms:

"8. What we take from the cases is that the tribunal has a total discretion under Rule 27(5), which does not seem to be limited by the Rules themselves. As well as considering the fairness to the parties we not only can, but should, take into account the wider tribunal system. That is particularly important in a case where the listing is for six weeks (30 working days), as set at the first case management discussion on 9 June 2010. There have been three case management discussions in all on 9 June, 16 August and 14 December 2010. Dr Pye represented himself throughout. There are the equivalent of 20 lever arch files of exhibits; that is to say 10 lever arch files of double-sided documents. That is 6,823 pages of exhibits and approximately 350 pages of witness statements of which 185 pages are the claimant's statement.

[…]

11. Proportionality is one factor the tribunal must take into account."

13. The power to adjourn comes under the general power to manage proceedings (rule 10 of the Employment Tribunal Rules 2004) and is provided for in addition by rule 27(5), which reads:

"If a party fails to attend or be represented (for the purpose of conducting the party's case at the 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 or may adjourn the Hearing to a later date."

14. We do not accept that the discretion is entirely at large. As with any discretion conferred upon a Tribunal, it must be exercised judicially with due regard to reason, relevance and fairness. In addition, the overriding objective applies to the exercise of this discretion as it does to other choices provided for by the Rules. Not every feature provided for by the various factors referred to in the overriding objective will necessarily have the same weight. The weight of any factor must necessarily depend upon the particular circumstances. However, Teinaz contains valuable statements of principle that assist in the giving of proper weight to those factors. In the Judgment of Peter Gibson LJ he said:

"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 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."

15. It is to be noted that despite being referred to this case and those words, we can see no trace that this Tribunal ever considered exercising its discretion whether or not to give a direction such as would enable any doubts to be resolved. That is also despite the requirement in the overriding objective to deal with the matter in a manner proportionate as between the parties, having regard to the importance of the issues.
16. It should be noted that as a matter of fact the medical report considered in Teinaz as compelling there to be an adjournment was very short. A doctor in manuscript recorded that he had advised the Claimant to keep away from work for two weeks due to severe stress, and for the same reason had also advised the claimant not to attend court next week. That was the sum total the Court relied upon in holding that an adjournment should have been granted. By contrast, the Court came to a different conclusion in respect of a different type of medical certificate in the case of Andreou, which followed the hearing and determination in Teinaz. In that case, there was no more than a certificate from a general practitioner that the Claimant was suffering from anxiety and stress and should refrain "from working" for 13 weeks, therefore containing no diagnosis, no statement that the claimant was unfit for court, and no prognosis. In that case the Court applied the same principles (paragraph 35) and followed them. Peter Gibson LJ said:

"There is no doubt but that the exercise of discretion by a tribunal, particularly in relation to a case management matter such as whether there should be an adjournment is one with which the EAT should be slow to interfere, and then only on limited grounds. There is no dispute but that such grounds include perversity. It is also clear that where the consequences of the refusal of the adjournment are severe, such as when it will lead to the dismissal of the proceedings, the tribunal must be particularly careful not to cause an injustice to the litigant seeking an adjournment."

17. He then referred to his earlier remarks in Teinaz. Those remarks, he said (paragraph 40):

"[…] were made in the context of a case where the employee applying for an adjournment had a medical note advising him not to attend an imminent tribunal hearing because he was suffering from severe stress, but the tribunal had doubted the medical note and had described the applicant as having chosen not to attend the hearing and said that the applicant's absence had reinforced the tribunal's suspicion. The tribunal had refused an adjournment and consequently dismissed the proceedings. The EAT allowed the appeal on the basis that the tribunal had taken into account a consideration which should not have been taken into account, and this court agreed with the EAT."

18. He described the medical certificate in Andreou as a woefully inadequate compliance with an order that had been made by the Tribunal to produce a medical report that addressed the concerns of that particular Tribunal. It might be thought plain that the Court of Appeal in both Teinaz and Andreou had approached the question of the appellate powers of this Tribunal in respect of a decision to adjourn as one to which the Court should apply the usual standard of review, on Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223 grounds. In Terluk v Berezovsky [2010] EWCA Civ 1345 a Court of Appeal, which, so far as we can see, was not referred to Teinaz or Andreou and which was not concerned with the (statutory) Employment Tribunal jurisdiction, did express an opinion as to the approach to the exercise of the power to adjourn in common law civil proceedings. Directing itself by reference to words spoken by Hope LJ in the House of Lords case of Gillies v Secretary of State for Work & Pensions [2006] UKHL 2 and by reference to what Carnwath LJ had said in AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579 at paragraph 50, the Court thought it appropriate to adopt an approach it described as "non-Wednesbury" in respect of the decision to adjourn; this would conform with the jurisprudence of the European Court of Human Rights under Article 6 of the Convention. Thus this would permit a court to review for itself the question of the fairness of a decision. The court would not simply be asking whether another court had directed itself properly in accordance with the law in coming to the conclusion it did as to fairness. Nonetheless (paragraph 20, in the Judgment of Sedley LJ), the question was whether the decision was a fair one, not whether it was the fair one, as if there could be only one fair answer in a situation where there might be more than one.
19. Before this Tribunal different constitutions, though both presided over by HHJ David Richardson, have twice taken their lead from the Terluk case in determining the approach that this Tribunal should take to questions of the exercise of the discretion by an Employment Tribunal in respect of adjournment. The first case was D'Silva v Manchester Metropolitan University UKEAT/0336/09, heard on 11 February 2011. The Appeal Tribunal, in holding that the Tribunal had not in that case on its particular facts erred by refusing an adjournment, accepted (see paragraphs 41 and following) that the approach was to consider whether the refusal of the adjournment rendered the hearing unfair.
20. In the subsequent case of O'Cathail v Transport for London UKEAT/0247/11, heard on 8 August 2011 with Judgment delivered on 13 January 2012, the Tribunal did hold that the refusal of an adjournment was wrong in law. It took the approach that there was nothing in the Judgments of the Court of Appeal in Terluk that would suggest that those Judgments were of limited application. That approach had been approved by a subsequent Court of Appeal case relating to whether a parole board should have granted an oral hearing or not in the case of Osborn & Booth v Parole Board [2010] EWCA Civ 1409, and concluded that the starting point must be that the law requires a fair hearing to be afforded to parties where, as in Tribunal proceedings, their civil rights are determined. Whether a Tribunal has met that fundamental minimum requirement is a question of law, and it is plain that the Appeal Tribunal took the approach of determining the fairness of, in that case, a refusal to adjourn.
21. We have not in this case had any developed argument as to the particular approach which this Tribunal should take: whether the more restricted approach, as it may be thought, of applying the usual standards of review, which might be described broadly as "Wednesbury", or whether to apply the more liberal, as it might be thought, approach of determining for itself the fairness of a case, which would not require the conclusion that a decision the other way was perverse, as it would if the Wednesbury approach were taken. The approach has not been put in issue by the advocates before us though our attention has been drawn to the cases. Ms Forster explains that that is because on the facts of this particular case she has concluded, and submits, that there would be little, if any, difference in the approach. Accordingly we are content not to resolve the question of which approach is correct but to accept that, the matter having been determined by this Tribunal in two recent decisions, we should follow their lead unaffected, as we understand, by any appeal, and adopt their approach. However, we note that in our view the approach is not necessarily to be assumed to be the correct approach, and may at some later stage, though plainly not in this case, require a definitive decision from a higher court. We accept that it would make little practical difference which approach were adopted in this case.

The Tribunal's decision

22. The Tribunal, having set out what it thought the approach was, and considered in paragraph 11 that proportionality required it to have regard to the Respondent's costs, which appear to have been approached on a financial basis, came to look at what it made of the letter that was before it. It excluded from its consideration, as we consider entirely appropriate, the otherwise secret report that had been sent to it on 14 January 2011 but the report of 1 February did stand before the Tribunal. It was accepted in argument before us, realistically, by Ms Forster that what that letter on any fair reading of it showed was, first, that this was not the first time that a consultant psychiatrist had seen the Claimant recently. It described his mental condition as getting worse.
23. Thus although the letter begins with the words "Further to my previous letter", the contents of that previous letter plainly were being overtaken by a statement of what was as at 1 February the current situation in a consultant doctor's view. The description included a clear diagnosis. Even if the doctor had not given her professional opinion, which was that Dr Pye was not fit to plead his own case, it would be self-evident, if the diagnosis were properly reached, that he would be unable to cope with a Tribunal; at any rate, of the type that was then being envisaged. He simply could not do it. Her professional opinion, however, was that he was not fit to plead his own case. That covers giving evidence; it covers arguing his case, and he had no other representative. It indicated a need for urgent attention, therefore emphasising the severity of his condition, and, importantly, it suggested that there was reasonable hope for sufficient improvement such that the Tribunal proceedings could be heard at some later stage. Although before us Mr Kamara, who appears as a member of the Free Representation Unit and for whose submissions and presence we are very grateful, argues that there was a period of three months after which there would be sufficient improvement, that is not what the letter says. As Ms Forster points out, it is at least three months, which could therefore be some longer period. However, that there was in a consultant psychiatrist's view, on the information that she had, a reasonable prospect that the condition might improve so as to enable Dr Pye to cope was clear.
24. The Tribunal, however, did not entirely see the letter that way. At paragraph 124 it said:

"The tribunal acknowledges that the report gives a diagnosis. It states the claimant needs urgent medical attention, it does not state the history, nor does it state the likely causes of the claimant's mental state nor does it give any detail of what medical attention he is currently receiving or will be receiving. It does not state anything more than that his case be postponed for a period of at least three months. There is no reason to think from this report that the claimant would be in any better state after three months."

25. The Tribunal repeated that, by reference to the Andreou case, at paragraph 130. It said:

"Gibson LJ in Andreou cited with approval the words of the tribunal which refused Mrs Andreou's postponement, which decision the Court of Appeal upheld:

'We are not satisified that, if we simply adjourn this matter, Mrs Andreou will be in any better state to appear in six months' time than when a 10-day case would be relisted. The medical certificate that we have been supplied with is inadequate.'

In our view, that same logic applies here. There is no reason to think that the claimant will be any better given the history."

26. At paragraph 133 it commented:

"133. The medical report is consistent with Dr Bakshi having met the claimant once or twice recently and knowing little or nothing of his work history, life history or medical history. This medical evidence does not explain why the extreme events of the past are not being repeated now at the tribunal, and why they will not continue to be repeated for as long as this dispute remains live. That is the tribunal's fear. We consider ourselves entitled to reach the conclusion that the past is the best indicator for the present and for the future.

134. The claimant seems to be unwell because he cannot take the stress of this litigation. If the reports are to be believed, it is making him more ill the nearer it gets to compliance with the directions for case preparation and further that there is no medical evidence to suggest that he ever will be able to cope with it."

27. As to that last paragraph, it is plainly wrong to say that there was no medical evidence to suggest he would ever be able to cope with it, when that is precisely the implication given in the last sentence of Dr Bakshi's report. It is unclear to us what reports the Tribunal had in mind, since they only had the 1 February report, in suggesting that the reports showed it was making him more ill the nearer it got to compliance with directions for case preparation. It might have been the case, but it does not seem to us obviously to follow from the terms of the 1 February report. As to the comment (paragraph 133) that the medical report was consistent with Dr Bakshi having met the Claimant once or twice recently and knowing little or nothing of his work history, strictly that is correct, but when expressions such as "consistent with" are used, it is often important and instructive to know what else the report is consistent with, and it would be equally consistent with Dr Bakshi having met the Claimant several times and knowing quite a lot about his work history. We are concerned that the Tribunal expressed itself in the way it did there having had the terms of the report of 14 January, which for this purpose, and this purpose only, we pay some regard to, which did show that there had been some appreciable history of this litigant seeing a consultant on referral from his general practitioner in connection with his mental health.
28. The Tribunal took into account a number of matters, which it introduced by recognising at paragraph 129 that it was unusual, or, a word used in argument before us, "exceptional", for the Tribunal not to give a party at least another chance to attend; this was the first application the Claimant had made in the course of Tribunal proceedings for an adjournment. It nonetheless put the Claimant's case in that special category. It did so, as it appears to us, because it was very difficult to list a case of the length of this one, and it could be re-listed in early 2012 at the earliest. There were other litigants whose rights to bring cases before the Tribunal needed to be considered. There were difficulties caused to the administration of a Tribunal hearing list by cases of such a length as was Dr Pye's. It did not refer significantly to the human effects of any lengthy adjournment, though we feel sure it would have had them in mind, and before us Ms Forster says, with justification, that in considering the costs of an adjournment the financial costs, though to some extent real, play very much a second fiddle to the human cost in terms of, here, the number of people against whom the Claimant had made allegations, sometimes in quite bitter terms, who had those allegations hanging over them until resolved, and in whose interests it was undoubtedly just that they should be resolved sooner rather than later. She pointed to the fact that part of the allegations suggested that the university had been corrupt in the way in which it awarded marks. That is a serious accusation against a body of higher learning. It is one that can affect reputation. It is one that deserves to be treated seriously, and should be dealt with as quickly as possible.
29. The Tribunal, however, went further. It expressed views that were dangerously close to coming to medical conclusions upon matters on which a Tribunal is not naturally qualified to express a view. Thus it expressed the view (see paragraph 128) that the real cause of the now acute psychiatric problems, if they were to be accepted, was likely to be the litigation itself. It expressed a view (see paragraph 150) that there was no medical evidence that dealt with the real likelihood of ever having an effective hearing given a well-documented and exceptionally poor and long history.
30. The review of the evidence that the Tribunal had conducted with a view to deciding the issues in the claim, albeit without the assistance of the Claimant, led it to a number of views about what had happened in the past. We summarise this. The Tribunal felt that the material indicated (see paragraph 77) that the Claimant was ready to seek out confrontation and then attribute it to others even where none existed, that when he cited principles of natural justice he did so with an amateur and clichéd ring, and it selected matters (see paragraph 61) which exemplified how the Claimant wished standard procedures to be carried out entirely on his terms and had a tendency to attribute exaggerated significance to routine practices in the workplace, giving rise to a tendentious and unconstructive correspondence abounding in controversial and provocative statements. It dealt with a previous request that the Claimant had made internally to his employer in order to explain why he should not attend meetings (because of his then current health) by relying upon a medical report that, in the view of the Tribunal (see paragraph 69), simply reported what the Claimant himself said, was no more than a postponement request written and signed by a medical practitioner, and provided no diagnosis, no cause, no therapy, and, it would follow, no prognosis. It recorded how, as late as the end of 2009, the Claimant had on health grounds claimed he was unable to attend meetings, and requested an adjournment (see paragraph 87), and generally came to the conclusion that whilst within employment the Claimant had on more than one occasion, as the date of a critical hearing approached, expressed himself, with the support of a medical certificate, as being unable to attend.
31. The Tribunal were therefore, in our view, rightly concerned about whether in this case the Claimant might ever be fit to attend a Tribunal called to hear what were his complaints against his employer. It is argued for the Claimant, however, that the medical evidence referred to here was not in the same category as that of the doctor to whose earlier report the Employment Tribunal referred at paragraph 69. That was clear; it gave the Tribunal all the information it needed. When from the bench Ms Forster was asked what in principle was different between the Claimant's position here and that of the Claimant in an hypothetical case in which it was supposed that a Claimant had two or three days prior to a lengthy hearing (involving difficult, delicate questions, cost, inconvenience to the Tribunals, and the maintenance of threat hanging over other persons' heads) had suffered a serious road traffic accident that had incapacitated him from attendance. Her response was that any fairness would require there to be an adjournment in such a case. She could say only that this was a psychiatric case rather than a physical one, and the Tribunal was entitled to have regard to what had passed before: otherwise she accepted that the principles clear from such an example would give a complete answer to the various matters, undoubtedly ones of prejudice, to which the Tribunal here had referred.

Conclusions

32. We come back here to the way in which the Tribunal approached its task. We have concluded it did not accept, and was in error of law in not accepting, that the report by Dr Bakshi did anticipate the reasonable possibility of recovery sufficient to enable a trial to be heard. We consider that the Tribunal was required in circumstances in which the application was equivalent, if refused, to a strike-out of his claim to ask whether a fair trial of the case would still be possible; it never addressed that question. We consider that the Tribunal did have proper ground for worrying whether the doctor whose report was presented to it had been fully informed with material such as that coming from the past history of Dr Pye within employment that might cause a revision of her opinion and might cause the real result to be that there could be no such further trial, but in such a case it should at least have considered exercising its discretion as to whether or not it caused further enquiries to be made of the doctor, or alternatively simply to grant the adjournment. If it had made further enquiries of the doctor, we are satisfied that there is a very real possibility here that what the doctor said would have made a difference, and it would have been quite likely that an adjournment would have been granted, though, not being a decision for us, we cannot say definitively.
33. We think an adjournment should have been granted if this Tribunal had approached matters in the light of Teinaz. We consider it should have been granted as a matter of essential fairness. We consider for the reasons we have given that the approach taken by the Tribunal was flawed, and we consider that it got impermissibly close to resolving medical issues that it was not equipped to resolve without taking the step of first asking the doctor responsible for the treatment of the Claimant for medical input. Accordingly, despite the very attractive submissions made by Ms Forster, we have little hesitation in permitting this appeal.

Disposal

34. Of greater difficulty perhaps, as it seems to us, is what, if anything, we should say as to the consequence. The consequence must be, first, that the matter be remitted to the Tribunal. We invite a Tribunal on remission to have regard to this matter first. The case covers a number of issues that do interlink, but might be separated with advantage to the trial process. Thus it may be thought possible for the allegations of discrimination and/or disclosure in the public interest to be determined prior to the issue of redundancy, since, as we understand the claim, an argument on redundancy is essentially that it was a sham to get rid of the Claimant. We do not determine that, but we invite the Tribunal to consider whether, with a view to shortening proceedings into acceptable lengths of hearing, it is a decision that they might wish to make.
35. Secondly, as we have expressed, we see very real reason for a concern that the medical condition of the Claimant may be such as would prevent a fair trial within any reasonable period of time. That is essentially, as we see it, an issue on which the Tribunal cannot make a decision simply by reference to past history, and in particular past history as to which the Claimant himself has had no possibility of giving oral input to the Tribunal. It is essentially likely to be determined by proper medical evidence. As Peter Gibson LJ indicated in the Teinaz and Andreou cases, a Tribunal can in such a situation consider what the medical evidence shows, and if any question arises in future as to the capability of the Claimant coping with a hearing, broken down perhaps, as we have suggested, into acceptable chunks, it ought to be open to the Tribunal to be able to approach a doctor who has been treating the Claimant, or for that matter to instruct an independent medical advisor. Of course, they will receive no co-operation unless the Claimant himself accepts that that should be the case, but if the Claimant in those circumstances does not do so, he must understand first that though it is his right not to do so, he cannot exercise that right without consequences to his other right, which is to bring a claim before the Tribunal, and that if he should unreasonably refuse permission for enquiries to be made of his medical advisor, which it is reasonably necessary to ask with a view to the Tribunal determining what is just, then he will have no complaint if the Tribunal in the absence of that information infers that there is no information that can properly assist the Claimant's case, and he will, as this case demonstrates, have to live with the consequences. It is not open to the Tribunal to accept any suggestion by him that any such medical communication should be restricted to the Tribunal. If the Tribunal is to ask medical questions in discharge of its functions, then both parties before the Tribunal must, except in the very exceptional cases that we identified earlier in this Judgment, have full access to what is asked and what is said, and to argue the consequences thereof.
36. We have spent some time in dealing with the issues consequential upon our Judgment for what we hope are obvious purposes, with a view to ensuring as best we can, and consistent with our appellate function, that the future conduct of this case is conducted on a footing that is at least clear as between the parties, and in particular is clear to the Claimant now that, we hope, he is fitter and better able to appreciate what we have said. It follows, in conclusion, that this appeal must be allowed, for the reasons we have expressed.