DR Y R TEINAZ v WANDSWORTH BOROUGH COUNCIL [2001] UKEAT 777_00_2501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 777_00_2501Case No Appeal No. EAT/777/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR Y R TEINAZAPPELLANTWANDSWORTH BOROUGH COUNCILRESPONDENT
Before
Mr Justice LindsayDate 25 January 2001
[1]APPEARANCES For the Appellant FRED EDWARDS JR (Non-practising Barrister) Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX MR JUSTICE LINDSAY (PRESIDENT) : We have before us, as a preliminary hearing, the appeal of Dr Y R Teinaz in the matter Teinaz v London Borough of Wandsworth . Today, Mr Fred Edward Jr. has appeared, as he appeared below, for Dr Teinaz. On 8th June 1999 Dr Teinaz, who is of Arab ethnic origin, lodged an IT. He is a man of impressive qualifications. He has a BSc Hon. in Environmental Health at King's College, London, a Ph.D. in Environmental and Social Studies at Liverpool University and a Masters Degree in Public Health at Dundee University; at any rate, those are the qualifications he claims. He claimed also that he had suffered repeated denials of a permanent position at Wandsworth. He alleged that that had been on racial grounds and he alleged also that he had been constructively and unfairly dismissed.[2]On 28th July 1999 Wandsworth put in an IT3 which in considerable detail denied both unfair dismissal and racial discrimination.[3]On 19th October 1999 there was a hearing as to jurisdiction and as to directions and the date for the full hearing was fixed for 7th June 2000 and directions were given, as one would expect, for the exchange of witness statements and other steps to be taken preparatory to the hearing on 7th June 2000.[4]On 7th June 2000 the hearing began of the only two complaints made by Dr Teinaz that had survived the earlier directions hearing which, in effect, whittled down the claims. The two complaints that survived that interlocutory decision are:
"5. … first, the allegation that the Respondent's rejection on 11th March 1999 of the Applicant's application for a full-time position was an act of race discrimination; secondly, the unfair dismissal claim."
[5]It is necessary to go back in time to before 7th June 2000. From 25th May 2000 Dr Teinaz's representative, Mr Edward, had been seeking an adjournment of the hearing of 7th June on the ground of Dr Teinaz's ill health. Wandsworth, by contrast, had made it quite clear that they were opposing any adjournment of the hearing for 7th June. On 1st June Mr Edward for the first time in the case sought an adjournment from the Employment Tribunal accompanied by the production of anything that could be described as medical evidence. It was a letter headed "Mutuelles Europeennes de Medicine" from Docteur Gyselinck, London. It was dated 31st May 2000. It was addressed "to whom it may concern" and it said:
"I have advised today Doctor Yunes Teinaz to keep away from work for two weeks from today, due to severe stress. For the same reason I have also advised Doctor Teinaz not to attend court next week."
It has a signature that could well be that of Docteur Gyselinck. It has rubber stamp on it saying "French Medical Centre, London, 25 Wimpole Street" and gives the postcode and the telephone number. It has a further print at the bottom saying "25 Wimpole Street, London W1M 7AD" and giving telephone and fax numbers and so on. It is notable that it mentions no examination having been conducted by Docteur Gyselinck. It give no prognosis. It fails to explain whether or not stress would return whenever the hearing was imminent. It was, in many respects, inadequate.[6]A Chairman considered the request ahead of the hearing on 7th June 2000 and refused to adjourn on the basis of the request, indicating that the request for an adjournment should be revised and repeated at the full hearing scheduled for 7th June 2000. The Chairman in writing added: "The parties should be ready to proceed to call evidence if necessary. …" referring to the hearing intended for 7th June 2000.[7]On 5th June 2000 Mr Edward, on behalf Dr Teinaz, indicated that an adjournment would be sought on 7th June. On 7th June he attended with instructions only to repeat the application for an adjournment.[8]In a careful and well-reasoned decision, the Employment Tribunal concluded that the adjournment should be refused, relying, inter alia, on a number of features in the chronology to which we have not felt it necessary to refer, but concluding as follows in their paragraph 25:
"Balancing all the relevant factors we have reached the clear view that the discretion to postpone which the Applicant invokes should not be exercised. At the heart of this conclusion is our opinion that the medical ground on which the application is based rests on evidence which is utterly inadequate."
They then declined to review that decision. They then went on to consider Dr Teinaz's case on the merits, of course in Dr Teinaz's absence and also without him being represented because Mr Edward had withdrawn, having attended only with instructions simply to repeat the application for an adjournment. The tribunal went into the merits on evidence that was, of course, presented only by the employer's side, by Wandsworth. On 19th June 2000 their decision and extended reasons were sent to the parties. The unanimous decision of the tribunal, which was under the chairmanship of Mr A M Snelson sitting with Mr C F Patterson and Mr J Bartell, was that:
"(i) The application on behalf of the Applicant to postpone the hearing is refused. (ii) The application on behalf of the Applicant for a review of the decision refusing the postponement is refused. (iii) All claims brought by the Applicant fail and are accordingly dismissed."
[9]On 23rd June 2000 a Notice of Appeal was dated and received by the Employment Appeal Tribunal. It raises the ground that Dr Teinaz should have been granted an adjournment. It has been supported by an affidavit of Mr Edward of 8th August 2000 and has attracted comments dated 23rd August from the Chairman, Mr Snelson.[10]Despite the careful reasoning which can be seen in the Employment Tribunal's decision, it is hard to resist the conclusion that arguable points do here arise. How far was the Employment Tribunal entitled to regard the doctor's note as "utterly inadequate", given that, for all its shortcomings, there was no medical evidence to the contrary? Related to that, how far, if at all, are doctor's certificates or notes to be treated as different from any other evidence and are they thus capable of not being accepted by an Employment Tribunal, even though not countered? Can an Employment Tribunal, in effect, go behind them and, if so, in what circumstances?[11]If there was an error by the Employment Tribunal, was it an error of law (and hence appealable) or of fact, and in that case, not appealable - see, in particular, Dick v Piller [1943] KB 497 and perhaps also Rose v Humbles [1972] 1WLR 33 . How far, if at all, has the entitlement of Dr Teinaz to a fair hearing under Article 6 been denied him? Was it an error and if so, was it an error of law, on the tribunal's part not to consider or, if they did consider, not to mention their consideration of the practicality of otherwise of adjourning on the first day, 7th June 2000 (which was the first day of a projected seven day hearing) so as to give time for the production by Dr Teinaz or by Mr Edward, on his behalf, of further and better medical evidence by say 10 a.m. on 8th June. Even if no such short adjournment was expressly sought, as seems to be the case, should it not have been considered by the Employment Tribunal as a practical solution to the problem before them and, if it should have been considered, was it an error of law not so to consider it or not to mention its consideration? How far, if at all, could significant weight be given to Wandsworth's plea that it would suffer prejudice from an adjournment on the ground (see the Employment Tribunal's paragraph 24(9)) that memories fade, given that the adjournment would be only to the year 2001 and that Wandsworth had already collected its witness statements by 25th May 1999 and that no specific evidence was adduced on the subject of that sort of prejudice or, indeed, any sort of prejudice? Whilst there were reasons to believe that the adjournment was being sought by Mr Edward because his case had not been prepared in time, even if that was the case, how far could that factor of itself disprove the medical grounds which were the grounds asserted?[12]Such questions, as it seems to us, fall broadly within the range of what can fairly be argued under the present Notice of Appeal, which is in broad terms and we do not require the Notice of Appeal to be amended, save that, as it seems to us, ground 5 in the present Notice of Appeal is utterly hopeless. The notion that simply by issuing fresh proceedings at the last minute an applicant can obtain an adjournment of proceedings already fixed for hearing and actually begun, on the ground that all matters should then be heard together, is quite absurd and if permitted as a principle would lead to a position in which hearings could be adjourned forever and at will. We put to Mr Edward that ground 5 was hopeless and he indicated that he had, in any event, intended to abandon it. There is no arguable point of law in ground 5 and ground 5 is therefore not permitted to go to a full hearing.[13]We do not require an amendment of the other grounds, but it might well be that we would not resist an application for their reform if it is made. Subject to that and excepting ground 5, we permit the other grounds to go to a full hearing.[14]It is already plain from the Chairman's letter that he has, and has already consulted, his notes of the hearing of 7th June 2000. It seems to us likely that the full hearing is going to have to deal with questions that concern what was said and done and put in issue on that day and we therefore request the Chairman to supply a copy of his notes to the Employment Appeal Tribunal and to the parties. The matter is Category A. The time estimate is half a day. There should be exchange and supply of skeleton arguments not less than 14 days before the date fixed for the hearing.