(1) MR C C ASHTON (2) MRS L G ASHTON v BURBAGE AND DISTRICT CONSTITUTIONAL CLUB [2012] UKEAT 0496_11_2402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2012] UKEAT 0496_11_2402Case No Appeal Nos. UKEAT/0496/11/DM UKEAT/0497/11
Between
(1) MR C C ASHTON (2) MRS L G ASHTONAPPELLANTBURBAGE AND DISTRICT CONSTITUTIONAL CLUBRESPONDENT
Before
HIS HONOUR JEFFREY BURKE QC (SITTING ALONE) (1) MR C C ASHTONDate 24 February 2012
[1]APPEARANCES For the Appellants MR C C ASHTON & MRS L G ASHTON (The Appellants in Person) For the Respondent MR JAMES ROZIER (of Counsel) Instructed by: Messrs Irwin Mitchell LLP Solicitors Imperial House 31 Temple Street Birmingham B2 5DB SUMMARY PRACTICE AND PROCEDURE – Postponement or stay The Claimants applied for an adjournment on ill health grounds, accompanied by an unfit for work certificate and a GP's letter stating that the Claimants needed two months to address and improve their stress. The Employment Tribunal refused an adjournment on the grounds that there was nothing to show that, if granted, the Claimants' health would be likely to improve; that reason was wrong; there was evidence to that effect. A very rare case in which the ET's deliberation as to adjournment was exercised in error of law. HIS HONOUR JEFFREY BURKE QC Introduction In this appeal the Claimants before the Leicester Employment Tribunal challenge the decision of that Tribunal to refuse them an adjournment of the hearing of their claims against the Respondent, the Burbage and District Constitutional Club, for unfair dismissal and for money which allegedly became due to them during the course of their employments as the club's stewards. The Respondent, the Club, deny that any money was due and contend that the Claimants, Mr and Mrs Ashton, were fairly dismissed for redundancy. Procedural background[2]The hearing of those claims was fixed for 28 and 29 March of last year. On 4 March there was a meeting between Mr Fretwell, whom I take to have been a friend of Mr and Mrs Ashton, who was acting as their representative and who does not seem to have been legally qualified, and the solicitors who were acting for the Respondent to address documentation issues. At that meeting the Respondent disclosed one page of a document, which is entitled "Note on the Latest Venners of 15.09.2010 Stocktaking Compiled by R D King". In that document, it appears that allegations of dishonesty are suggested against Mr or Mrs Ashton, or both. At no time during the lead-up to the dismissal had dishonesty been alleged; and misconduct was not a reason given by the Respondent for the dismissal of either Claimant. The remainder of the document was sent by email to Mr Fretwell on 9 March with some of it redacted for reasons briefly set out in a letter to the Tribunal dated 22 March, which was copied to Mr Fretwell. It is understandable that Mr and Mrs Ashton were distressed at hearing, for the first time, that some idea of dishonesty on their part was, to put it loosely at this stage, in the wind.[3]Mr Fretwell had sought an adjournment from the Tribunal on the basis of problems over documentation; but that application failed. On 18 March he wrote to the Tribunal a letter in which he made another application for an adjournment. He said this:
"We would respectfully request that this letter and the attached copy letter be placed before a Tribunal judge for their urgent review and consideration. Please find attached a letter from the Claimants' General Practitioner, the content of which is self explanatory. We had provided a number of documents to the Claimants following disclosure of these by the Respondent on the 4 th and 9 th March 2011."
I interpose to say that those documents included the document to which I have just referred. I resume the letter:
"The content of these disclosures caused the Claimants considerable concern and distress and they subsequently visited their GP as a result of the stress levels they were experiencing. As a direct result of the problems/stress being experienced by the Claimants, we have been unable to meet with the Claimants and discuss the recent disclosures by the Respondent. Given this situation, the stress levels being experienced by the Claimants and the attached letter from the Claimants' GP, we therefore make an application to the Tribunal for the Hearing listed on the 28 th & 29 th March 2011 to be postponed to a future date."
[4]The GP's letter, coming from a Dr Sultan, a director of Grange Medicare Ltd, reads as follows:
"Mr and Mrs Ashton are undergoing considerable stress and anxiety with regard to the tribunal. The meetings are causing increasing anxiety problems and they are generally finding it difficult to cope. I would therefore like to request postponing meetings for the next two months in order to manage and reduce the stress levels. If you require any further information please do not hesitate to contact me."
[5]That application was refused by the Tribunal in a letter dated 24 March. The letter says that Employment Judge Ahmed had decided that the case should remain listed for hearing. That decision is not the subject of this appeal, directly at least; and it was in no sense a surprising decision; for Dr Sultan in his letter had not said that Mr and Mrs Ashton were unfit to attend either work or the Tribunal.[6]Undaunted, Mr Fretwell tried again on 25 March. His letter to the Tribunal on that day, the Friday before the hearing was due to start on the Monday, refers to the earlier decision, refers to his having had a conversation with an employee of the Tribunal on the previous day, and to his having learnt that the previous application had been refused; and, referring to the correspondence file, he continues:
"We are therefore making a further application for a postponement of the Hearing listed for the 28 th and 29 th March 2011 for the following reasons:- a) The Claimants are not medically fit to attend the Hearing commencing on Monday 28 th March 2011. b) Their GP has now issued the Claimants with a medical sick note that confirms that they are medically unfit to attend the hearing. […]"
[7]He attached those sick notes. He gave other reasons, relating to witness statements, which it is not necessary for me to recite; and he argued that the interests of justice demanded that the Claimants were permitted to put their case personally at the hearing and the Respondent would not be unduly prejudiced by a postponement, in comparison to the effects of the hearing proceeding in their absence on the Claimants. At the end of the letter he said this:
"The Claimants' GP has stated in his previous letter to the Tribunal that the Claimants would require two months, as from the 16 th March 2011, in order for their stress levels to be managed and reduced. It is our understanding that this remains the timescale for any future determination of a Tribunal Hearing date."
[8]The accompanying medical certificates said, in the case of both Mr and Mrs Ashton, that they were suffering from stress reaction and were not fit for work for a period of two weeks to 10 April.[9]This last application for an adjournment was considered by Employment Judge Threlfell on the same day, 25 March, and the Tribunal, in its letter of the same day, said this:
"Employment Judge Threlfell has refused your request because there is no likelihood that delay will make the position any easier for the claimants. The Tribunal must also consider the position of the respondent. I would confirm, therefore, that the case remains listed for hearing on 28 March 2011 […]."
[10]Mr Fretwell wrote a response to the refusal of the adjournment. Out of courtesy he indicated that the Claimants could not be present because of their ill health and, therefore, there was no point in his being there. Thus, the Tribunal, on the morning of 28 March, had before them nobody on behalf of Mr and Mrs Ashton; nor were Mr and Mrs Ashton present; Mr Rozier of counsel was present on behalf of the Respondent as he has been on their behalf today. The Tribunal decided to proceed with and dispose of the claims in the absence of the Claimants. They heard evidence from the Respondent and indicated that they were going to make findings of fact; but the proceedings came to a halt because the Respondent sought as an alternative to redundancy to put their response forward on the basis of a different reason for dismissal, namely "some other substantial reason"; and in the absence of Mr and Mrs Ashton, it was thought by the Tribunal that it was unfair simply to allow an amendment to be made to enable the Respondents to reorientate their case in that way; therefore they adjourned to permit both sides to put forward written submissions on that issue; and then at a later date the Tribunal members met and reached their decision. Mr Fretwell put forward written submissions on that issue, but that does not affect the appeal before me today, which relates to the refusal of an adjournment.[11]There is no suggestion that the Tribunal considered anew on 28 March whether to adjourn or not. What they did was not to make an independent decision amounting to a further refusal of an adjournment; they simply proceeded on the basis that the adjournment decision had already been made. They are certainly not to be criticised for that; nobody was there to make a further application for an adjournment. In the end the Tribunal, apart from finding that a small amount of money was due, dismissed the Claimants' claims.[12]The Claimants' appeal is focussed on the decision to refuse the last of the applications for an adjournment. In the Notice of Appeal, which was plainly drafted by Mr Fretwell (and I make no criticism of it), it is recognised that the Employment Judge was exercising a discretion; but it is argued that the Employment Judge, in declining to adjourn for his stated reasons, erred by saying as he did that there was no likelihood that delaying would make the position any easier for the Claimants, when there was evidence before him to the contrary effect. The Claimants have put forward a digest of the decision of the Court of Appeal in the case of Teinaz v London Borough of Wandsworth [2002] ICR 1471 . That digest takes the form of a statement of principle deduced from that decision, and they adopt that statement of principle as the central pillar of their case on this appeal. They have appeared on their own behalves today; and they have not put forward (again, I do not criticise them for this) any reasons further to those which have been advanced on their behalf by Mr Fretwell.[13]The statement of principle extracted from the decision of the Court of Appeal in Teinaz is not in any way erroneous; but it is better to look at the decision itself. The facts of Teinaz are more complex than those of the present case; but essentially the claimant in that case was refused an adjournment although the tribunal was provided with a general practitioner's letter, saying that he had advised the claimant for medical reasons not to go to work or to attend the tribunal. The Employment Appeal Tribunal allowed the claimant's appeal against the tribunal's refusal of an adjournment; and that decision was upheld by the Court of Appeal. Peter Gibson LJ, who gave the leading Judgment, with which Arden LJ and Buckley J agreed, said, at paragraphs 20-22:20. Before I consider these points in turn, I would make some general observations on adjournments. Every tribunal or court has a discretion to grant an adjournment, and the exercise of such a discretion, going as it does to the management of a case, is one with which an appellate body is slow to interfere and can only interfere on limited grounds, as has repeatedly been recognised. But one recognised ground for interference is where the tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account: see, for example, Bastick v James Lane Ltd [1979] ICR 778 at 782 in the judgment of Arnold J giving the judgment of the EAT (approved as it was in Carter v Credit Change Ltd 1980 1 All E.R 252 at page 257 per Lord Justice Stephenson, with whom Cumming-Bruce and Bridge LJJ agreed). The appellate body, in concluding whether the exercise of discretion is thus vitiated, inevitably has to make a judgment on whether that matter should have been taken into account. That is not to usurp the function of the lower tribunal or court: that is a necessary part of the function of the reviewing body. Were it otherwise, no appellate body could find that a discretion was wrongly exercised through the tribunal or court taking into account a consideration which it should not have taken into account or, by the like token, through failing to take into account a matter which it should have taken into account. Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment. As was said by Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at page 653 on adjournments in ordinary civil actions: 'I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.'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. That 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."[14]Arden LJ at paragraph 37 said this:
"It is to be noted that the standard of review with respect to the exercise of discretion involves the grant of considerable deference to the inferior tribunal. In particular, where several factors going either way have to be balanced by the inferior tribunal, the appellate tribunal does not interfere with the balance and the exercise performed by the inferior tribunal unless its conclusion was clearly wrong."
[15]By a quirk of events the same issue arose in the Court of Appeal six days later, again before Peter Gibson LJ and Arden LJ, the third member of the Court on that occasion being Cresswell J, in the case of Andreou v The Lord Chancellor's Department [2002] EWCA Civ 1192 . On this occasion the employer, the Lord Chancellor's Department, successfully appealed the Employment Appeal Tribunal's decision to allow the employee's appeal against a tribunal order striking out a claim when she failed to produce medical evidence in support of an adjournment application. Mrs Andreou had applied for an adjournment on the basis of ill health. She sent a medical certificate in which her general practitioner signed her off work for 13 weeks with anxiety and stress. The tribunal did not refuse an adjournment outright; they took the view that the medical certificate was inadequate because it did not say that Mrs Andreou was unfit to attend court; but they adjourned for a week ordering Mrs Andreou to produce, in effect, a proper medical report; and she did not do that. The full facts are more complex; but that summary will suffice for today's purposes; the facts were certainly very different from those of today's case. At paragraph 25 of his Judgment in that case Peter Gibson LJ, with whom, again, Arden LJ, and on this occasion Cresswell J, agreed, repeated what he had said in Teinaz in paragraphs 21 and 22. There is no difference in principle between the decision of the Court of Appeal in Teinaz and that in Andreou , as Mr Rozier, on behalf of the Respondent, accepts. Different results were reached on the basis of wholly different factual situations, to which the same principles were applied.[16]How should those principles be applied in this case? First of all, I recognise that it is important to grant due deference to the case management decision which the Employment Judge made. Employment Judges work under very great pressure. They have to use their experience and instincts to enable them to make case management decisions on paper, including decisions as to adjournment. They should not ordinarily be criticised lightly for exercising their case management powers and discretions; as Arden LJ said in Andreou at paragraph 51, an appellant who seeks to take on the task of challenging such a decision of an Employment Judge has to overcome a very high hurdle. It has to be shown that the Tribunal has made an error of law, that the Tribunal has failed to take something into account which it should have taken into account or has taken something into account that it should not have taken into account, or has reached a decision which no reasonable Tribunal could reach. The Tribunal is entitled to exercise its discretion and should only be successfully challenged if, in effect, its exercise fell outside the appropriate bounds; which are wide bounds, within which it can exercise that discretion.[17]However, in this case, in my judgment, that hurdle is successfully overcome. My reasons for that conclusion can be briefly expressed. I have already set out the reasons given by the Employment Judge for his refusal of the last application for an adjournment, namely that he must consider the Respondent but there was no likelihood that delay would make the position any easier for the Claimants. Unhappily, in giving those reasons, in my judgment, the Employment Judge fell into error. Of course he had to balance the position of the Claimants and the Respondent – nobody could criticise him for doing that; but in doing so he erroneously expressed the view that there was no likelihood that delay would assist the Claimants by removing or ameliorating their illness; and the evidence before him did not support that conclusion. Indeed, in my judgment the evidence was contrary to that conclusion. Dr Sultan in his letter, having referred to the considerable stress and anxiety with regard to the Tribunal that Mr and Mrs Ashton were experiencing, said this:
"I would therefore like to request postponing meetings for the next two months in order to manage and reduce the stress levels."
[18]Further, in his letter making the final application for an adjournment, Mr Fretwell expressly set out that time frame when he said that Mr and Mrs Ashton would require two months from 16 March for their stress levels to be managed and reduced. There was material before the Employment Judge, or at least there should have been, showing that there was, in the view of Dr Sultan, a real prospect that if meetings were postponed for two months, stress levels could be managed and reduced. Whether the Employment Judge saw that letter or did not see it it is impossible now to say. If he did not see it, he should have done, and there was an error; if he did see it, then he nonetheless made an error. It is, I have to say, extremely rare for a discretionary exercise of the type which the Employment Judge carried out on 25 March to be overruled by this Employment Appeal Tribunal; I have explained why that is so; but this appears to me to be an occasion in which it is entirely plain that an error was made which went to the root of the Employment Judge's exercise of his discretion; and that exercise of his discretion was based on an erroneous reason. Mr Rozier has pointed out that neither in Dr Sultan's letter nor in the subsequent GP certificates is it said that Mr and Mrs Ashton were unfit to attend the Tribunal, as opposed to being unfit to work. Leaving aside the point that litigants in person and their unskilled representatives might rarely be thought to appreciate the difference between those two statements, a difference that is well known to those with forensic experience, unfortunately for Mr Rozier and the Respondent that was not the basis on which the Employment Judge refused to grant the adjournment. Had it been, Mr and Mrs Ashton's position would be much more difficult in this appeal; but it was not. He gave a different reason; that reason was a reason that cannot be sustained, and, in my judgment, this appeal succeeds. Conclusion[19]It must follow, subject to anything that the parties wish to say to me (for we have not yet discussed what might follow from this decision), that the refusal of an adjournment and all that followed it must be set aside; and Mr and Mrs Ashton's claims must be remitted to the Tribunal now to be considered on their merits. It seems to me that it would be right to say that they should be considered by a different Tribunal from the Tribunal which proceeded to hear those claims on 28 and 29 March of last year.