MS M PEIXOTO v BRITISH TELECOMMUNICATIONS PLC [2008] UKEAT 0222_07_2201

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0222_07_2201Case No Appeal No. UKEAT/0222/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M PEIXOTOAPPELLANTBRITISH TELECOMMUNICATIONS PLCRESPONDENT
Before
His Honour Judge McMullenDate 22 January 2008
[1]APPEARANCES For the Appellant MS M PEIXOTO (The Appellant in Person) For the Respondent MRS L TOWNSEND (Solicitor advocate) BT Group Legal Services Post Point LF19 Milton Keynes CC D 182 Tavistock Street Bletchley MK2 2AP SUMMARY Practice and Procedure: Striking-out/dismissal Following a long litigation history in which the Claimant, being unwell, was blameless, it was open to the Employment Tribunal to strike out the claims when it found there was no prospect at any time in the future that the Claimant would be ready to proceed. Having considered less draconic steps, it concluded that the litigation was aggravating the Claimant's chronic fatigue syndrome and a fair trial was impossible, six years after her last working day, and more than three years after her dismissal. HIS HONOUR JUDGE McMULLEN QC This case is about the striking out of a disability discrimination and unfair dismissal claim where a fair trial was not possible. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting at London Central, chaired by Employment Judge Ms V Cook, registered with reasons on 25 January 2007.[3]The Claimant represented herself, as today. The Respondent was represented by a solicitor and today by Ms Lisa Townsend, a solicitor advocate. Before and during this hearing, in response to the Claimant's applications, adjustments have been made, which we need not recite. The Claimant's underlying claim of unfair dismissal and disability discrimination were the subject of an application for postponement by the Claimant and for striking out by the Respondent. Both applications were heard on 10 January 2007. The Claimant's application for a postponement was refused and the Respondent's application for the claims to be struck out was accepted.[4]The essential issue before the Employment Tribunal was whether a fair trial of the Claimant's claims was possible. The Claimant appeals against the second but not the first of the Tribunal's judgments that day, that is the strike out. The case was considered on the papers by a judge and subsequently directions were given at a preliminary hearing by Mr Justice Elias, President, and members, sending this matter to a full hearing. The legislation[5]The 2004 Employment Tribunal Rules give extensive powers of case management to an Employment Tribunal or an Employment Judge. As far as is relevant to the proceedings on appeal, Rule 18 provides for pre-hearing reviews to be conducted by a judge unless certain circumstances apply. The power is given to strike out claims or parts of claims in certain specific circumstances, and the following are relevant to today,: "18(7) … a chairman or tribunal may make a judgment or[6]Prior to making such an order the notice requirements in Rule 19 must be compiled with unless an opportunity has been given to a party to give reasons orally as to why such an order should not be made.[7]Hand in hand with these provisions is the European Convention on Human Rights Article 6 which is scheduled to the Human Rights Act 1998 and which provides in relevant part as follows:
"6.1 In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law."
The facts[8]Employment Judge Carstairs in 2005 ordered a stay. Although the judgment under appeal relates to the one hearing in January 2007 (Judge Cook's) it refers in detail to two previous hearings conducted by Employment Judges alone. The first by Employment Judge Ms AM Lewzey, sitting alone, on 15 February 2006, is a case management discussion. The second is a judgment of Employment Judge Mr G Solomons, including both reasons and case management orders, at a pre hearing review as set up by Employment Judge Lewzey.[9]An outline of the facts cannot be given except in scant form for, of course, there has been no trial. The Respondent is a major telecommunications provider; the Claimant was employed by it as a computing officer at a salary of £22,000 a year from 1991 until the relationship ended by her dismissal on 27 November 2003.[10]The Claimant had been off work on account of certified sickness since 12 January 2001. The matters which gave rise to her claim relate to her dismissal following a period of ill health absence, and the way in which she was treated and adjustments said not to have been reasonably made on account of her disability during 2002. In particular, she made criticisms of two line managers, Mr Hall and Mr Harrison. The Claimant was originally represented by solicitors but they parted company.[11]The claim to be tried is whether the Respondent discriminated against the Claimant for a reason related to her disability and failed to make reasonable adjustments for her disability and whether it unfairly dismissed her contrary to sections 98 and 111 of the Employment Rights Act 1996 .[12]The Claimant, who is 57, and who is seeking reinstatement, essentially relates her case to the last event which took place on 27 November 2003, her dismissal, but includes a period of almost two previous years of further criticism of the Respondent.[13]It is common ground that the disability of the Claimant within the meaning of the Disability Discrimination Act 1995 is chronic fatigue syndrome (CFS) which creates difficulties in concentration and application. Ms Townsend accepts that the core of any hearing is to be the fairness of the reason for dismissal for the purposes of unfair dismissal, and justification of the dismissal for the purposes of the Disability Discrimination Act . Thus it seems likely that the Respondent would quickly accept that her dismissal was related to her disability. That is important because it indicates where the focus of this case lies and is more likely to be on the evidence of the Respondent than of the Claimant.[14]The Tribunal related the history of the litigation going back to the presentation of the claim form in 2004. The strands of the three earlier Employment Judges' decisions are very important for the understanding of the present case. Employment Judge Lewzey acknowledged that case management discussions were taking place two years after the claim had been presented. The Claimant presented evidence from her treating practitioner, Dr Mirza, indicating steps which would need to be taken for the conduct of any hearing of the Claimant's case. They included slotting a six day case into a ten day window with intervening days off, with the Claimant taking breaks throughout the trial and for long periods of what was described as aggressive rest, following the preparation of each of the steps in her case, such as the witness evidence and the documentation.[15]The matters before Employment

Judge Lewzey include this advice:

"… The Tribunal is required by Article 6 of the European Convention on Human Rights to conduct a fair trial. That fairness applies to both parties. Before making an order which will have a substantial adverse effect on the Respondent referred to above the Tribunal must be satisfied that what you request is the only way it can conduct a fair trial, having regard to the interests of both parties and the requirement to make reasonable adjustments."
Thus it was that her listing arrangements formed the template for the subsequent hearing. She noted as things stood at that date, February 2006, there was no prospect of the matter proceeding to hearing. Ms Lewzey had considered the previous history of the litigation in the hands of different Employment Judges, including a sequence of case management discussions fixed and then postponed throughout 2005, broadly speaking at the request of the Claimant.[16]It was also noted by Ms Lewzey that the Respondent expects to call between one and three witnesses and Ms Peixoto indicated that she will be giving evidence but does not know whether she will be calling any witnesses.[17]At the end of the reasoning of Employment

Judge Lewzey there is this:

"Ms Peixoto then said that she could not adhere to any such timetable because she had no legal representation and without legal representation the hearing could not go ahead. The Chairman observed that the Claimant has had some 18 months in order to provide assistance by way of legal representation, and has not done so. The Claimant has herself been prolific in correspondence and the matter bears the appearance of a case that the Claimant does not wish to have heard."
The Claimant was there indicating a different reason for her inability thus far to have prepared the case pursuant to case management directors. Employment

Judge Lewzey then set out a timetable for a pre-hearing review with this agenda:

"4.1.1. Whether it is possible for the case to be heard at all, bearing in mind the overriding objective and the Claimant's state of health, together with the history of the case and the fact that the Claim Form was presented on 26 February 2004. 4.1.2. Whether the claim should be struck out as one that has not been actively pursued. 4.1.3. Whether the claim should be struck out as one that has no reasonable prospect of success. 4.1.4. Whether the claim should be struck out for non-compliance with any of the orders made by the Tribunal."
[18]A further strand is recognition by the Judge that the Claimant has been prolific in her correspondence. She rejected the claim that the Claimant's CFS meant she could not make arrangements for legal representation. The orders made by the Judge were subject to a penal notice for failing to comply which includes the possibility of a fine and striking out the claim.[19]That case was followed by a pre-hearing review, this time in the hands of Employment Judge Solomons. The application to strike out the claim was refused. This was as it was originally put, under rules 18(7)(d) (inactive pursuit) and 18(7)(e) (non-compliance). Mention was made of an application which might correspond to 18(7)(f), (fair hearing): see paragraph 4 and 5 of Employment Judge Solomons' judgment. The two applications which were formally made were rejected. An application based on the claim having no reasonable prospects was not pursued.[20]An important aspect of Employment Judge Solomons' judgment, in refusing the applications to strike out, was that "it is in the interest of both parties that this case is listed for a hearing in the near foreseeable future and steps are taken to ensure that the case can go ahead during the time listed for hearing." Specific arrangements were made for the hearing on 18-30 October 2006. He also made orders for the preparation ahead of that hearing. Acknowledgment was given to the bundle already prepared by the Respondent. The Claimant was to add pages within a certain period and there is this direction:
"By 11 August 2006, the Respondents are to put those documents in the trial bundle, repaginate the bundle, and serve a copy of the complete trial bundle upon the Claimant."
Again a penal notice was attached.[21]The case was postponed at the instance of the Claimant and relisted for full hearing on 10 January 2007. There the Tribunal was asked to postpone the hearing and then also to strike out the claim. So both applications were live before it. The Tribunal outlined the lengthy and complex litigation history, and gave a detailed examination of the medical material. Medical evidence is set out by the Employment Tribunal through the words of Dr Mirza in reports dating from 10 May 2005 where she said this:
"Maria Peixoto suffers from Chronic Fatigue Syndrome and due to her physical and mental fatigue, pain and especially her mental fatigue together with her concentration problems, we would like to let you know that she needs to be interviewed first thing in the morning and first thing in the afternoon and, for no more than 30 minutes. Additionally she needs two breaks in the morning and afternoon sessions, if possible, but at least one break. Maria Peixoto needs to prepare for the Employment Tribunal Hearings. Maria Peixoto needs to complete all tasks such as paperwork, meetings, reviewing incoming documents and preparation for the Hearing for her case, six weeks prior to the hearings taking place, as I have advised Maria Peixoto to "rest aggressively for six weeks prior to the Employment Tribunal hearing, in preparation for the hearings."
[22]Reference was made to another report of the doctor in which this is said:
"Maria Peixoto told me about the Employment Tribunal Directions orders dated 4 March 2005 and in my opinion she will not be capable of meeting with deadlines due to illness and she will need to request a postponement of these. Maria Peixoto suffers from Chronic Fatigue Syndrome and due to her physical and mental fatigue, pain and concentration problems she will not be capable of preparing the documentation nor representing herself at the Employment Tribunal hearings without the help of a solicitor. Additionally Maria Peixoto is currently quite ill and I anticipate that she will not be able to prepare documentation nor attend hearings with or without the help of a solicitor for the next 20 weeks to 21 weeks. She will need to have hydrotherapy treatments and treatments for her multiple joints pains, and myalgia. She normally undertakes these treatments in Portugal as she finds these treatments in Portugal more beneficial and it is my opinion that she needs to pursue these treatments in Portugal."
[23]The Tribunal noted that "the indication of 20 to 21 weeks is a feature typical of the very many reports on the Tribunal file from Dr Mirza". At this point there were already four earlier reports.[24]The Tribunal went on to review the material which was available to Employment Judges Carstairs, Lewzey and Solomons and the directions which were given. It is to be noted that at the time of the Solomons hearing the Claimant was indicating that in addition to herself she might have one other witness. The Tribunal went on to outline a number of other applications and refusals made by judges at London Central Tribunal and further extensions of time given to the Claimant to comply.[25]The Tribunal also noted the strand that the Claimant produces extremely lengthy correspondence and it cited at least three letters. That correspondence is generally in support of applications to postpone or to resist applications from the Respondent.[26]The latest material which was available to the Employment Tribunal consisted of two reports from Dr Mirza and they say this: (24 November 2006) "Maria Peixoto suffers from Chronic Fatigue Syndrome and she told me about all the Employment Tribunal deadlines and the Appeals Tribunal deadlines that she has got in the near future. In my opinion Maria Peixoto is not be able to meet these deadlines due to a setback in her health. Maria Peixoto is currently quite ill and I anticipate that she will not be able to prepare documentation nor attend any hearings for about 16 or 17 weeks from now." (29 December 2006) "Maria Peixoto suffers from Chronic Fatigue Syndrome and her core symptoms are fatigue which affects her physical and mental functioning, as well as pain in her muscles, joints and head. Additionally for the last five weeks she has also been suffering from symptoms of severe indigestion which may be an ulcer. In my opinion, in view of her illnesses, Maria Peixoto will not be able to concentrate to prepare documentation or concentrate at any hearings for approximately three months."[27]The Tribunal reported on the steps taken during its own hearing by way of reasonable adjustments for the Claimant's condition. It then went on to consider the application made by the Claimant that she was not well enough to continue. Her inability to continue was because she was presently suffering from a gastric ulcer and eczema. That is not referred to in Dr Mirza's reports. The Claimant did not say that she was unable to take part because of CFS. .[28]The Tribunal noted when coming to whether the Claimant would be ready to resume her litigation that it had been proved wrong in the past, so the Claimant was asked when she could serve her witness statement and was told that she had done no work to prepare it. (The reference in paragraph 35 to the Respondent is clearly a reference to the Claimant).[29]The Tribunal heard further submissions about managers involved in the Claimant's case. It was the Respondent's contention that it had lost contact with Mr Hall. This is a red herring since Mr Hall was not to be called by the Respondent but at most is a background to any difficulty the Respondent might have. No doubt if it really wanted Mr Hall to be a witness it would have produced him.[30]The Tribunal also dismissed the Respondent's application to strike out on the grounds of failure to comply with Tribunal orders, together with the non active pursuit of the claim. These are taken no further. But the central contention, which is the basis of the finding and thus the appeal, is that it was no longer possible to have a fair trial of the case.[31]The Tribunal acknowledged that it was dealing with applications which were inextricably linked but on analysis it is possible to disentangle them and to treat them in sequence as is properly the case. The central thrust of the Claimant's case was that she had a doctor's note which covered her until March 2007. She would then be able to serve a witness statement by 10 April, would need a further six weeks to rest and that she could be ready to have the case heard in June.[32]The Tribunal accepted that the Claimant was disabled by reason of CFS and that her condition was aggravated by the gastric condition but that the only medical evidence (in respect of CFS) was Dr Mirza's. It noted how many applications there had been to adjourn and also prayed in aid an opinion of Mr Justice Elias, President, who, in dismissing an appeal by the Claimant against one of the orders said this:
"… The Tribunal had already adjourned this case in order to take account of the difficulties being experienced by the appellant. The matters in dispute here go back almost three years. It would be quite unacceptable that there be further delays if the case was heard again. It is entirely within the discretion of the Chairman and I can see no error of law in the way he has exercised that discretion."
[33]The Tribunal said this of Dr Mirza:
"57. Despite the many medical reports from Dr Mirza, the Tribunal has never been provided with a clear prognosis of when the Claimant may be expected to be sufficiently well to prepare and present her case. There have been many attempts by the Tribunal to obtain better information on the Claimant's condition which includes of course her need for adjustments to the Hearing. Dr Mirza has on more than one occasion been asked to attend the Tribunal, and was offered the opportunity to take part in a telephone Case Management Discussion. Ms Peixoto's consultant was summoned to attend the Case Management Discussion, but unfortunately he was on holiday and this did not happen. We are reluctantly drawn to the conclusion that it may not be possible to give a prognosis of when Ms Peixoto will be able to litigate her case. We have concluded there is no route open to us by which we can obtain any better information. We accept that Ms Peixoto has done her best in providing the medical information she has. It is our belief that if Dr Mirza were to attend that she would not be able to give us better information than she has in her reports. 58. In the circumstances, we have no alternative but to accept and agree with the Respondent's submission that if we were to agree to the application to postpone that we would find ourselves (or another Tribunal would find themselves) in the same position at a resumed Hearing. Ms Peixoto has told the Tribunal – and this has not been challenged that her health has suffered, and her stress and anxiety levels are increased, by having to deal with correspondence and comply with Tribunal deadlines."
[34]That then led it to consider the strike out. It paid attention to the orders of the previous Tribunals where, of course, there was reference to the relevant rule. The Tribunal exhibited its attention to alternative proposals for dealing with the case without striking it out. They included the possibility of going ahead without a written statement. This is what the Tribunal said:
"61. In our questions to the parties prior to our deliberation, we explored the possibility of finding an alternative to striking out the complaint. We raised with the parties the possibility of the case going ahead without a written witness statement from the Claimant. Ms Peixoto said that she was unable to do this as she had given no thought to the content of her witness statement and would have to research what needed to go into it. The Respondent objected on the grounds that their defence would be prejudiced, saying Ms Peixoto had had several weeks to consider their witness statements, and it was clear that she was unable and unwilling to go ahead with the hearing on the 10 th … The Tribunal emphasised that if at all possible, our first priority was to hear and determine this claim. Neither party wanted this to happen, although the Respondents had arrived with bundles, witness statements and their witnesses. It follows that had the Claimant been willing and able to continue, that we could have heard the case."
[35]We take that to be a conclusion against the submission of the Respondent that just because the Claimant had had its evidence and not produced hers it would be unfair to go ahead. The plain meaning of this paragraph is to reject that tit-for-tat approach, but to consider whether the case should go ahead on that day and, as is found, the reason why the case did not go ahead as directed following the refusal of the application to postpone was that the Claimant had not been willing and able.[36]The Tribunal acknowledged that it was an extremely serious step to strike out a claim. It said this:
"62. We approach both applications with care. It is an extremely serious step to strike out a claim. We were concerned at the lengthy history of postponements, and the energy and resources which had already been expended in this litigation by both parties. 63. We acknowledge that it is only in the most unusual cases appropriate to strike out a claim because of one party's failure to comply with the Tribunal orders. In such case, we should consider first whether there is any alternative to such an order. A usual order might be to compensate the other party by way of an order for costs. Such a possibility was not raised in these proceedings, but was considered by us and thought to be inappropriate … In order to grant the application to postpone, we would need to feel that there was some point in postponing the hearing, and there was some likelihood in the near future that the hearing could be effective. Regrettably, we cannot reach this conclusion. In the circumstances, we feel that a postponement would be futile and would only add to the cost and the distress of the Claimant."
[37]It expressly addressed the rule; it acknowledged that there is no element of blame and no contention that there is a refusal to comply with orders. That dealt with rules 18(7)(d) and 18(7)(e) as it expressly put it. But then it concluded in this way:
"66. We have had some difficulty in considering the Respondent's application which is founded principally on the grounds of blameworthy conduct. We are persuaded that this litigation should be dismissed on the grounds that it appears to us that it is no longer possible to have a fair hearing. … We do not accept that all of the evidence is in documentary form, and it is almost inevitable in such a case important points will turn on oral testimony… There have been many, repeated attempts to bring this case to a hearing. Unfortunately, these have been without success. 67. When considering the powers of the Tribunal, we must do so having an eye on the overriding objective that requires that we should deal with a case justly, ensuring that the parties are on an equal footing. We should do so in ways which are proportionate to the complexity or importance of the issues ensuring that the matter is dealt with expeditiously and fairly, and with a view to saving expense. 68. … It is now almost three years since proceedings were commenced and it cannot be said that this case has been dealt with 'expeditiously'. Nor can it be said that the case has not been an expensive one in terms of emotional and financial demands on the parties, and on the Tribunal Service. The case is not ready for hearing today and we cannot foresee – with the assistance of medical experts, any point in the foreseeable or even the distant future where this might be likely. Ms Peixoto has said today that the litigation is aggravating her condition. We accept this. In our view, this is a wholly unusual case with a very unusual history. Meaningful and repeated attempts have been made to bring this litigation to a fair conclusion. They have not succeeded. With great reluctance we conclude that it is no longer possible to have a fair hearing in this matter and regretfully, we strike out this complaint."
The Claimant's case[38]The Claimant has presented a 25 page full argument in addition to her skeleton argument and her notice of appeal. It is contended that this case should not have been struck out in the absence of blame and where the delay is due in part to lack of co-operation by the Respondent. She contends that the prognosis for her was clear, that the claim was struck out at a time when she was under the medical opinion of Dr Mirza and that the degree of involvement of witness evidence in this case was minimal. The case could have been tried on documentation.[39]The Claimant acknowledged that she told the Employment Tribunal she could not carry on but there was a dispute as to who said it first.[40]We did not invite the Claimant to continue a submission based upon the merits of the case for the Respondent had abandoned an application to have the case struck out on the grounds that it had no merits. For the purposes of this appeal it is assumed that there are triable points. The Respondent's case[41]On behalf of the Respondent it is contended that the Tribunal was essentially looking forward. In the absence of a prognosis which gave a clear date as to when a trial could occur there was no alternative but to strike out the case once the Tribunal had looked at all other less drastic possibilities.[42]The Tribunal was correct to acknowledge that the litigation itself was taking its toll on the Claimant exacerbating her symptoms, aggravating her condition and that the Tribunal was right in this very unusual litigation history to strike it out. It was unfair to the Respondent since no evidence had been adduced by the Claimant pursuant to the order for it to go to trial on its existing evidence.[43]The Tribunal had correctly looked at the possibilities such as a trial without a witness statement, further information being gleaned from the medical adviser, robust case management and a trial on the documents only. The Claimant's case replicated that in the EAT, where for this hearing, there were constant applications by the Claimant for elongation of the time periods, postponement and other case management decisions. The Claimant was capable of writing long and detailed documents and it was inexplicable that she could not produce a witness statement. The legal principles[44]The legal principles to be applied in this case derive in part from Blockbuster Entertainment Limited v James [2006] IRLR 630 (CA). This was a case which was struck out at an Employment Tribunal on the first day of the hearing, held to be a wrong decision by the EAT and on appeal by the Court of Appeal. It was a case relating to unreasonable conduct under rule 18(7)(1)(c). There Sedley LJ giving the judgment with which Wilson and Brooke LJJ agreed said this:
"5. This power, as the employment tribunal reminded itself, is a Draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge [2000] 2 BCLC 167 and of the EAT in De Keyser v Wilson [2001] IRLR 324 , Bolch v Chipman [2004] IRLR 140 and Weir Valves v Armitage [2004] ICR 371 , but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal. 20. It is common ground that, in addition to fulfilling the requirements outlined in §5 above, striking out must be a proportionate measure. The employment tribunal in the present case held no more than that, in the light of their findings and conclusions, striking out was "the only proportionate and fair course to take"
. This aspect of their determination played no part in Mr James's grounds of appeal and accordingly plays no part in this court's decision. But if it arises again at the remitted hearing, the tribunal will need to take a less laconic and more structured approach to it than is apparent in the determination before us. 21. It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact – if it is a fact – that the tribunal is ready to try the claims; or – as the case may be – that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences."[45]It is also clear that the provisions of Article 6 of the convention are disjunctive and that the guarantees of a fair hearing before an impartial and independent Tribunal within a reasonable time are three separate guarantees. See Porter v Magill [2002] 2 AC 357 . Discussion and conclusions[46]No issue arises under the notice point under rule 19 and, indeed, the prospect of a strike out on the basis of a fair trial being impossible had been extant for about nine months prior to this. As to her case that she did not serve a witness statement because of late arrival of the bundle, the Employment Tribunal had that fully in mind when it gave its decision and it will be recalled that the Tribunal held that Ms Peixoto was not ready or willing to try the case on 10 January in the circumstances which were then prevailing. The Tribunal might have gone ahead but the Claimant was unwilling and she did not come with bundles or any other material or the witness who she had indicated that she might bring.[47]We accept that the application of rule 18(7)(f) is a draconic measure to be used sparingly and almost never at the hearing of the case. Discrimination claims in a diverse society cry out to be tried on their merits, see the speech of Lord Steyn in Anyanwu v South Bank Student's Union [2001] UKHL 14 . This is a truly extraordinary case and to put it in a nutshell is to do a grave injustice. The nutshell is this: at the opening of the Claimant's hearing her case was struck out while there was in place a medical certificate indicating her unfitness for a further two months at least. It is unfair to reduce this judgment to a nutshell because as we have indicated the Tribunal itself paid reference to the three previous employment judges who had dealt with this matter.[48]The first question is: who makes the decision as to whether a fair trial is possible? In rule 18 it is emphasised that this is a matter for the Employment Tribunal. That is because there is reiteration, alone amongst the eight strike-out rules, of the opinion of the Chairman or Tribunal. In other words, those who know most about whether a fair trial is possible in an Employment Tribunal are those specialist members and employment judges who are there day in and day out. That is not simply a matter of construction of rule 18(7)(f) but is clear from the powers which it has been given.[49]The assessment of whether a fair trial is impossible obviously invokes consideration of what other matters can be considered. This is the application in a different context of Sedley LJ's approach to the rule dealing with unreasonable conduct. In every case, there must be some question of proportionality. In our judgment that arises when dealing with rule 18(7)(f) at stages prior to the determination that a fair hearing is not possible. It could not be said that once the judgment had been made that a fair trial was impossible, any further steps need to be considered. If the Tribunal reaches that conclusion and yet orders the case to go on for some other reason, it would be allowing itself as a public authority under the Human Rights Act to commit a violation of the Convention Art 6.1.[50]The fact that it must conclude that a fair trial is impossible involves consideration of all lesser alternatives, including proportionate measures to see whether the case can be tried. In this case it was offered a number of possible scenarios. The Tribunal dismissed the Respondent's contention that the case should not go ahead simply because the Claimant had not produced a witness statement. But the Tribunal held that there was more to this case than documentation. The claims would have to be made by the Claimant and outlined by her. It is fair to say that much of the material would be advanced, and would have to be advanced, by way of justification under the DDA, or fairness under the Employment Rights Act, by the Respondent's witnesses. But the Claimant acknowledged herself that she wanted to give evidence. She did not resile from or appeal against the order that witnesses should give evidence by way of a witness statement. So that remained the measure of choice of the Employment Tribunal. True it could be varied, but no application was made to do so. It is the standard order in an Employment Tribunal and it was to be the way in which this claim was to proceed. Thus the Tribunal considered as a possibility trial only on the documentation, and in our judgment cannot be faulted for indicating that it would not be fair for the matter to go ahead without evidence from the Claimant.[51]Secondly, the Tribunal considered whether the matter could be put off. As we have indicated, the proper sequence is that once it was determined that the Claimant was to have her hearing that day, rejecting her application to postpone, then many of the matters will have fallen away. What was presented to the Tribunal was some evidence as to what would be the future. We know from the judgment of the Court of Appeal in Richmond Adult College v MacDougall [2008] EWCA Civ 4 para 32 per Rimer LJ that a Tribunal must act as a prophet and so must foretell the future. What did it have for this task, apart from its own experience? It had the experience of three previous employment judges and the evidence of Dr Mirza. The effect of Dr Mirza's evidence is not conclusive. The Tribunal must itself make the decision as to whether a trial can be available in a reasonable period of time.[52]The firm finding by the Tribunal was that the medical evidence was the same as it had heard before and had been fruitless. Dr Mirza's opinion as to when the Claimant would be ready was constantly confounded. Her grounds were slight and had been wrong in the past.[53]The Tribunal considered robust case management, putting off dates, putting on dates, trying to get the parties to co-operate. None of those had worked.[54]In our judgment the principal finding by the Tribunal is firmly rooted in Article 6. This Tribunal held that it could not find any point in the foreseeable or even the distant future, when a trial might be likely. The requirement of Article 6 is that a trial must take place within a reasonable time. On that basis the Tribunal was correct. If it could not in 2007 see any time in the future when this case arising in 2003 could be tried, then it was correct to form the view that a fair trial was not possible and to strike it out.[55]This is a separate issue from essentially the backward looking decisions relating to the Claimant's case on the conduct of the Respondent, the finding that the Claimant was not to blame and the fact that she was suffering from CFS. Those relate to periods in the past as indeed does the failure to accede to previous orders. The Claimant was not held to be culpable under rule 18(7)(d) or (e).[56]However, looking forward as it was required to do on 10 January 2007 as to whether, since this case was to be heard that day and yet the Claimant was not ready and able, it was possible to hear it on another day, the Tribunal reached the conclusion that it was not. We, on appeal, are circumspect in criticising a Tribunal for the exercise of its discretion unless it has done so on wrong principles or omitted any relevant factor. We bear in mind also that the Tribunal is in a paradigm position to judge what is fair in this case, particularly as it and previous judges of London Central had had considerable hands-on experience of this case. The three members of this Employment Tribunal had heard the application and had reviewed all the material, and it was they who decided not to accede to Dr Mirza's vague prognosis and on all the material decided that this case should be struck out.[57]We detect an element of sympathy to the Claimant in the Tribunal's reasoning that this litigation was aggravating her condition. It is an understandable judgment to make given the previous history. Dr Mirza indicates a period of time when it is reasonable for the Claimant to do whatever preparation is needed, time passes, the preparation is not done. There is force in the finding that the Claimant is able to focus at certain times on preparing lengthy documents for interim applications and yet it is unable to produce a witness statement.[58]We cannot see any error of law in the Tribunal's unusual decision to strike out the claim on the grounds that a fair trial was not possible. As to her difficulty in dealing with EAT applications at the time, that is November 2006, those matters were fully in hand, all of the Claimant's appeals were dismissed by the EAT.[59]We thank Ms Peixoto for coming today to present her argument at a time which is obviously very stressful for her, and to put it as well as it could possibly be put. Acknowledging that she is not a lawyer, we do not think legal assistance would have changed the impact of her submissions in any way. We are grateful for the measured approach Ms Townsend has taken to this difficult case.[60]The appeal is dismissed. Postscript[61]This Judgment was given, but not transcribed, between the hearing and the reserved Judgment we gave in Abegaze v Shrewsbury Adult Education College UKEAT/0176/07 where greater explanation of the legal principles in this case appears.

order

- (c) striking out any claim … on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been scandalous, unreasonable or vexatious; (d) striking out a claim which has not been actively pursued; (e) striking out a claim …(or part of one) for non-compliance with an order or practice direction; (f) striking out a claim where the chairman or tribunal considers that it is no longer possible to have a fair Hearing in those proceedings."

Cited in 1 later judgment