MS S FADINA v GOVERNMENT CAR & DESPATCH AGENCY [2005] UKEAT 0264_04_1602

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2005] UKEAT 0264_04_1602

Case No Appeal No. UKEAT/0264/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS S FADINAAPPELLANT

GOVERNMENT CAR & DESPATCH AGENCYRESPONDENT

Before

His Honour Judge J Altman Mrs R A Vickers Mr G H Wright

Date 16 February 2005

[1]APPEARANCES For the Appellant MR SIMON HARDING (of Counsel) Instructed by: The Bar Pro Bono Unit For the Respondent MR BEN COLLINS (of Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS SUMMARY Employment Tribunal refused adjournment disbelieving the Applicant was too ill in face of medical certificate and without properly considering material before them. HIS HONOUR JUDGE J ALTMAN This is an appeal from the Decision of the Employment Tribunal sitting at London South on 16 and 17 July 2003. The Decision of the Tribunal was that the Applicant was unfairly dismissed and the Respondent was ordered to pay compensation of £1,685. The matter was subject to a Review Hearing, which, in the main, it is unnecessary to refer to.

[2]The matter comes before us on appeal in which a number of matters are raised. But the primary issue is whether the Employment Tribunal erred in law in proceeding with the hearing, notwithstanding the application for an adjournment on the ground of ill-health presented to them on the morning on the hearing. Because we intend to allow this appeal on that ground and to remit this case for a fresh hearing before a differently constituted employment tribunal, it is unnecessary, and indeed perhaps inappropriate, for us to make observations about the remaining issues in the case.

[3]The Applicant was employed by the Respondents from 7 May to 11 September 2002, with continuity going back to earlier Government employment. On 10 December 2002 she applied to the Employment Tribunal on a claim of unfair dismissal. Her Originating Application contained her telephone number. On 16 July the matter came before the Employment Tribunal, when they considered an application for an adjournment.

[4]Preceding matters of relevance are these. It appears that around about 9 June, some five weeks before the hearing, the Applicant, and at around that time the Respondent as well, sought an adjournment due to the claimed lack of preparation, which application had been refused to both parties. On 14 July, two days before the hearing, the Applicant had fainted. On 15 July she went to the doctor, we know (although the Tribunal may not have had this information) that she says that she told the doctor she was unfit to attend court and was given a certificate certifying unfitness for work, but making no reference to the tribunal hearing. At that time she was expecting to be represented by a firm of consultants or lawyers who did not act upon the knowledge that she says they had at that time that she was unwell and indeed did not attend to represent her, which must have been known by the Applicant for on the morning her friend, Ms Scott, attended on her behalf.

[5]At 3.15 pm on 15 July the Applicant says that she faxed the law firm, and it appears from the information before us that at 4.34 pm on the day before the hearing, material was faxed to the Employment Tribunal. That was an urgent message headed "FOR THE ATTENTION OF MS JUDY TIDY (or an Administrative Clerk)", setting out the name of the case and the proposed hearing of 16 and 17 July, and saying this:

"I herewith attach my sick note as of today's date. I have been trying to contact someone at the Tribunal's office, this afternoon and my representative, Abbey Law. I have not been able to make contact with my representative as yet. Please could you contact Ms Diane Scott [and her number was given], to confirm receipt of the fax. Ms Scott called the Tribunal this morning to speak to someone with regards to my health, as was not able to do so at the time as I was still being seen by my Doctor. I or my representative will be contacting the Tribunal office tomorrow morning (16 July 2003)."

[6]The following morning, the morning of the hearing (although the document is dated 15 July we assume that it was the one sent the following morning), a fax or an e-mail was sent on behalf of the Applicant by Ms Scott, who says that she spoke to someone in the Tribunal earlier in the afternoon but the reception on her mobile was not clear and she could not get the name. She went on:

"Ms Fadina has not been feeling very well for two weeks, and has been seeing her doctor about illness as she was suffering from severe stress, in addition to her panic attacks and anxiety problems. Yesterday, Ms Fadina fainted and was in a critical way, and as a result had to see her doctor this morning. I am aware that she has a hearing commencing tomorrow (Wednesday 16 th July 2002) [it may be that I was wrong and this was sent the previous afternoon] and I know that she has been trying to contact her representative at Abbey Law this afternoon to inform them of her sickness and the sick note that she received today. I am not sure if she has got through to Abbey law as yet, as her representative was not present in the office. I called Ms Fadina this afternoon to see how she was feeling and she is currently on her way to a relative's address. Ms Fadina has been trying to contact the Tribunal office this afternoon, but I am not sure if she did make contact. I shall be grateful if someone could contact me on this number [and the number is given] to confirm whether a fax was received today at any time."

[7]It appears that it was the following morning (that of the hearing) at 9.34 am that an e-mail was sent with an "Urgent Letter to Clerk of Tribunal", possibly attaching that document which had been faxed the day before, and the Tribunal confirmed receipt of the e-mail and stated that it was "receiving attention".

[8]The matter then came before the Employment Tribunal, at which time, therefore, all the information to which I have referred had been received by the Employment Tribunal. The Employment Tribunal appear to have taken no steps to contact the Applicant. The Decision then proceeded and the question of adjournment was considered. I pause to observe that there is no reference in the Decision of the Employment Tribunal whatsoever to any of the material to which I have just referred.

[9]The Employment Tribunal considered the application for an adjournment at the outset. It appears that the Respondents were willing and ready to proceed, even though they had earlier hoped for an adjournment; their witnesses were there and indeed an application was made to dismiss the application upon the non-appearance of the Applicant, a robust application which was rejected. In the Extended Reasons the Tribunal dealt with the reason why they did not adhere to the application for an adjournment. The application was based upon essentially two matters: first, the need for an adjournment to complete preparation; and secondly, the alleged sickness of the Applicant. The Employment Tribunal observed that they knew no reason why Abbey Law had not attended, but that the Applicant was represented by Ms Scott. They drew attention to the fact that she attended more than half an hour late and it appears that the hearing had already begun. It also appears that no steps were set in train before the hearing began to seek to telephone the Applicant or Ms Scott at the numbers that had been left, to enquire if there was any unforeseen circumstance causing delay. The Tribunal hearing had therefore begun entirely in the absence of the Applicant.

[10]The Tribunal then set out, in paragraph 5 of their Reasons, the basis upon which the decision not to agree to adjourn the matter was made. They dealt in subparagraph (a) with the lack of representation and preparation before the hearing, which they considered was not a basis for an adjournment. We would, however, pause to note that as we understand it at the lunchtime adjournment of the hearing the Respondents disclosed to Ms Scott, for the first time, some of their documents, which clearly the Tribunal were prepared to admit without the opportunity of the Applicant to address them.

[11]Paragraph 5(b) asserts that the interests of justice to proceed with the hearing on the allocated date had to be considered; and the disadvantage to the Respondent in an adjournment outweighed the advantage to the Applicant to be gained by such an adjournment. It seems that in reaching that decision the Employment Tribunal was considering the issue of preparation, because in the rest of that paragraph they come to the conclusion that the previous failure to provide information to the Respondent means that the Applicant may not have been any more prepared for a hearing after an adjournment. But of course that balancing exercise has to be carried out, not only in relation to the preparation, but also in relation to the other matters, particularly illness.

[12]In paragraph 5(c), the Tribunal find:

"The Applicant asked us to adjourn on the basis that she was unwell. She submitted a sick note saying "stress/anxiety"

. The Tribunal is very experienced at working with parties who are stressed and anxious about the proceedings. There was no physical reason why the Applicant could not attend the hearing to take whatever part she could in the proceedings, whilst relying on the able support of Ms Scott to represent her."

[13]In paragraph 5(d) the Tribunal went on to point out that the Applicant's witnesses did not attend and they made a finding which appears to have omitted what the Chairman had in mind at one time to say. For they said that the failure to attend "either suggested that the Applicant had made a decision that she and her witnesses would not attend on the appointed day despite the fact that an adjournment had been refused, and that cannot be condoned." The Chairman did not go on to explain what the "or" was in their mind at the time. Accordingly, we feel bound to read that decision on the basis that that was their judgment: that a reasoned decision had been made to, as it were, pre-empt the Tribunal by withholding witnesses and the Tribunal formed a dim view of that, saying it could not be condoned. One can imagine, of course, many reasons why witnesses who may have commitments and difficulties of their own, by a litigant (virtually) in-person are advised not to attend without necessarily meaning that the particular Applicant was 'cocking a snook' at the Tribunal.

[14]We mention that because it does seem to link with the approach of the Employment Tribunal to the question of stress and anxiety. It appears that, on the basis of the sick note, the Tribunal concluded that, as a matter of fact, the sick note description of stress and anxiety was at such a level as to be of the kind of stress and anxiety which can be readily handled by a tribunal's experience at working with parties who are stressed and anxious about proceedings. There is no information before us that entitled the Tribunal to come to the conclusion that the stress and anxiety referred to was due to the proceedings; and there is no information before us which entitled a Tribunal to effectively make a finding as to the level of stress and anxiety so as to equate it with the stress of coming to a tribunal.

[15]The Tribunal then went on to make a finding that there was no physical reason why the Applicant could not attend the hearing. Again that is a finding of fact, but we are not sure of the basis upon which that finding was made. We know that the Tribunal had received a fax pointing out that the Applicant had fainted a day or so before and had had to go to the doctor; and the borderline between stress and anxiety and the physical effects of stress and anxiety are perhaps not quite as clear-cut as the Tribunal appear to have found in their reasoning.

[16]Before coming back to that, we complete the reference to the reasons of the Tribunal in paragraph 5. In paragraph 5(e), the Tribunal deal with the matter of evidence. They point out that it was a claim for unfair dismissal and they say this:

"The Respondent had witnesses present at the hearing and could therefore explain to the Tribunal why it said the dismissal was fair. The Tribunal was therefore in a position to adjudicate on the application, without the need for the Applicant to be present."

Mr Collins, who has very helpfully expanded upon all the available arguments for the Respondent in this appeal, has said that he had made an application, as I have already said, for the claim to be dismissed. We should perhaps look upon that paragraph of the Tribunal's Decision as being a finding that there was sufficient information for the Tribunal to conduct a substantive hearing, and thereby to refuse the application to it simply because of non-attendance. However, on the face of the Decision it seems to be, in effect, a judgment that because the Respondent had witnesses present the Tribunal therefore did not need the Applicant to be present, which is of course a " non-sequitur" .

[17]At paragraph (f) the Tribunal then reverts to the lack of preparation as "not having received relevant documentation". The Respondent makes the same complaint. The conclusion is that as a result the parties were in a position of equality so far as exchange of documentation was concerned. We would pause to observe that they were in a procedural position of equality; but it is only the content of the relevant documents that could determine whether there was a substantive equality; and of course the production of documents by the Respondents during the hearing, which the Applicant had had no opportunity to consider, was a fact to which we have already referred.

[18]Reverting to the issue of sickness as a reason for the application for adjournment, Mr Collins has helpfully set out his analysis of the propositions to be derived from the two cases of Teinaz v London Borough of Wandsworth

[2002] IRLR 721

and Andreou v Lord Chancellor's Department

[2002] IRLR 728

, and he rightly points out that the tribunal has a discretion to grant an adjournment and that the discretion will only be interfered with by an appellate body on limited grounds. Those grounds include perversity, mistake as to the law, and taking into account irrelevant considerations or failing to take into account relevant considerations. It is also pointed out that the onus is on the applicant for an adjournment to prove the need for an adjournment, and where the consequences of a refusal are severe, such as when it will lead to the dismissal of proceedings, the tribunal must be particularly careful not to cause an injustice to the litigant seeking an adjournment.

[19]We would pause to say that in relation to sickness, that is not a matter that was addressed by the Employment Tribunal – the consequences of the adjournment – except for the Tribunal to conclude, as we have observed, that they had enough information before them. They assert that the balance of advantage was in favour of proceeding, but do not provide any analysis of that balance in relation to the absence of the Applicant.

[20]Mr Collins' analysis goes on that where there is a balancing exercise to be carried, unless the conclusion is clearly wrong, that balancing exercise will not be interfered with. Again, whilst it is right that in paragraph 5 the Employment Tribunal set out a number of different factors, it does not seem to us that it gave reasons for balancing the matters of prejudice in relation to an adjournment or proceeding. This is an application in which the Respondents had, at an earlier time, wished for an adjournment. In any event the matter was going to go on into the next day so that there must have been an opportunity for a pause and some communication. It therefore seems to us that the Tribunal failed to ask itself what the consequences of the refusal would be or, insofar as they concluded that they had enough information anyway, it seems to us that the imbalance of the mass of oral and written evidence from the Respondents must mean that their judgment on that is open to question. We have not, however, based our decision upon that aspect of this case.

[21]Finally, it is pointed out that an appellant has a high hurdle to overcome in relation to arguing that the exercise of discretion by a tribunal was improper and should be set aside, and reference is made to the matter of stress and anxiety and the way it was dealt with by Arden LJ in the Andreou case – the need for complaints to be heard promptly, the interests of other parties and the need to avoid to unnecessary waste of tribunal time and scarce resources.

[22]I turn now briefly to the two cases to which reference was made. In the case of Teinaz there was a medical certificate advising non-attendance at court, which was not accepted at first instance. The Court of Appeal found that although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Reference was made to

Article 6 of the European Convention on Human Rights

: "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…. [However] 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." and of course in that case the medical advice went much further towards making that proof than it does before us.

[23]The other case is Andreou v Lord Chancellor's Department . In that case there was the traditional, if I may so describe it, medical certificate of unfitness for work, but the employment tribunal had given an adjournment to provide an opportunity for the employee to make good, and had failed to do so. In his judgment Peter Gibson LJ said, at paragraph 41 of the report:

"The circumstances in the present case are, in my view, different from the Teinaz case. On 6th November 2000 the Tribunal was faced with an application for an adjournment on medical grounds when the medical certificate, which had been given on 27th October 2000, did not address the question whether Mrs Andreou was or was not fit to attend the Tribunal hearing. The fact that a person is certified on medical grounds as not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner. Mrs Andreou had been off work for some two years. She had seen Dr Pal on 27th October, that is to say some 10 days before the hearing, which had been fixed for many months to commence on 6th November. Yet, neither she, nor her solicitor when he was instructed to seek an adjournment, had obtained a proper medical certificate addressing the question whether she was fit to attend the Tribunal hearing. There was no evidence, as I have already noted, as to precisely when Dr Pal had referred Mrs Andreou to a consultant psychiatrist. Indeed at the original hearing on 6th November it does not appear that the Tribunal was informed of the reference. That appeared subsequently in the medical report of 8th November and, as I have noted, we do not know when or in what terms the reference was made. The Tribunal, knowing that it was for an applicant for an adjournment to satisfy it that an adjournment was appropriate, could arguably have dismissed Mrs Andreou's application, as the employer had urged, on the basis that she had not discharged the burden on her. But instead the Tribunal adopted the sensible course of giving Mrs Andreou a further limited opportunity of making good the deficiencies in her evidence…" and later on at paragraph 45 he said: "…on 6th November Mrs Andreou in seeking an adjournment on medical grounds should then have put the relevant medical evidence before the Tribunal to justify the adjournment which she sought…. She had been given a further opportunity to make good the failure to provide proper medical evidence, having been warned by the earlier decision that what had been put in front of the Tribunal in the form of the medical certificate was inadequate."

That of course provides differences from the appeal.

[24]Mr Collins relies upon that passage which I have quoted at length in support of the proposition that at the morning of the hearing of 16 July the burden rested on the Applicant to prove that she was medically unfit; and simply having provided a medical certificate of unfitness for work meant, as in the Andreou case, that it was arguable that the application could be dismissed on the basis that she had not discharged the burden on her; and that at appellate level, Mr Collins would urge, we should go no further than to say that it may have been sensible or reasonable for the Tribunal to give a further opportunity, but in the exercise of their discretion, bearing in mind the burden of proof, they were entitled to find that the burden was not discharged.

[25]About that, however, it seems to us we should say the following. First, the judgment of Peter Gibson LJ must, it seems to us, be seen in context. He did not come to a conclusion as to whether a dismissal for failing to discharge the burden would have succeeded. He goes no further than to say it could arguably have done so. Secondly, of course, that proposition follows his analysis of the facts, which included a period of many days (some ten days) in which the Applicant had the opportunity to obtain further evidence, to make an application to the Tribunal, and to, through legal advice, put the matter on a proper footing.

[26]The case before us and before the Employment Tribunal was wholly different. The Applicant had not had much time (only about 24 hours), but one could not say that she had done anything other than try to use every device possible to draw the matter to the attention of the Tribunal in good time and, as a litigant (virtually) in-person, can hardly be blamed for not adverting to the proposition that unfitness for work may not necessarily mean unfitness to attend court.

[27]It seems to us, therefore, that whilst one recognises the burden of proof, one has to look at the evidential situation and the way in which the Tribunal approached it. Furthermore, in relation to the application of Andreou to the case before the Employment Tribunal, the Tribunal did not approach the matter on the basis that there was a failure to discharge the burden of proof. Far from it. Effectively, in paragraph 5(c), the Tribunal simply rejected the validity of the application for an adjournment. Arden LJ, in paragraph 65, said that:

"Stress and anxiety are generic terms…likely to cover a range of symptoms differing widely in their severity. Where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity, and so on, or to explain why those details cannot be supplied to the Tribunal. When a party applies for an adjournment he must bear in mind the need for complaints to employment tribunals in these sorts of matters to be heard promptly, the need to consider the interest of other parties to the proceedings and the need to avoid unnecessary waste of tribunal time and scarce resources."

Those seem to us to be, if we may say so, very helpful words of guidance and advice and take account of the facts of the case in which they were said, which envisages the opportunity of making applications before the hearing, making them promptly and in proper time, and really putting parties on notice that they may have to do more than furnish a medical certificate.

[28]Returning to the case before us, it seems to us that the approach of the Tribunal is wrong in law, and the Decision of the Tribunal showed that the discretion was exercised in a way no reasonable tribunal could have done. The Tribunal failed to consider the evidence disclosed to them by fax and e-mail in advance of the hearing. The Tribunal secondly came to conclusions, it seems to us, as to the level of stress and anxiety (to which we have already referred) upon which there was no medical foundation, and likewise as to the absence of any physical reason. The balancing of interests was a matter of assertion and does not demonstrate the reasons upon which it was based.

[29]Accordingly we are driven to conclude that thereby irrelevant considerations were applied so far as the facts were concerned and relevant considerations of the factual material provided also were not considered. Whilst of course the burden rests upon an applicant, it is quite common, in our experience, for applicants to believe that a doctor's pro forma certificating an illness which requires absence from work is sufficient to explain the difficulty in attending court without more. In this case the Tribunal had an Applicant who was seeking a response from the Tribunal and had had none; and it seems to us, therefore, that we are driven to conclude that the Tribunal jumped to a series of conclusions which the facts did not warrant. The Tribunal denied itself the opportunity, if it had doubt as to the probative value of the material before it, of enabling the Applicant to make good those deficiencies; and again, as a matter of convention, it seems to us, the Employment Tribunal departed from normal practice.

[30]However, we have dealt with the exercise of discretion narrowly, in our judgment. It results in the allowing of this appeal. It seems to us the only possible course is for the matter now to be remitted for fresh hearing before a differently constituted tribunal.