Pye v Queen Mary University of London (Practice and Procedure: Striking-out/dismissal) [2015] UKEAT 0151_15_2210

EAT

Pye v Queen Mary University of London (Practice and Procedure: Striking-out/dismissal)

[2015] UKEAT 0151_15_2210 · 2015-10-22

[2]“46. The tribunal in deciding whether to refuse an adjournment had to balance a number of factors. They included not merely fairness to Mrs Andreou (of course, an extremely important matter made more so by the incorporation into our law of the European Convention on Human Rights, having regard to the terms of Article 6): they had to include fairness to the respondent. All accusations of racial discrimination are serious. They are serious for the victim. They are serious for those accused of those allegations, who must take very seriously what is alleged against them. It is rightly considered that complaints such as this must be investigated, and disputes determined, promptly; hence the short limitation period allowed. This case concerned events which took place very many years ago, well outside the normal three months limitation period. The tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened employment tribunals are these days. Fairness to other litigants may require that indulgences given to those who have had the opportunity to justify an adjournment but have not taken that opportunity adequately are not extended. It was a matter of particular concern that no indication was given in the evidence of Mrs Andreou either as to when the medical evidence which she required from the consultant would be available, nor as to when it might be that this case could come on for trial. Viewing the case in the round and considering all the circumstances referred to by the tribunal, I cannot see how it could be said that in refusing the application the tribunal was perverse or otherwise plainly wrong in refusing a further adjournment.” 28. As I have said, the facts in Andreou are different. The picture about the workload for this Employment Tribunal is now also somewhat different. Nonetheless, as the ET in this case made clear, it is very difficult to assemble lay members for a long hearing, and it does cause cost and inconvenience if they have to be stood down at short notice. Andreou does make clear that in discrimination cases, where Parliament has set a short limitation period (subject to extension), a relevant factor is that serious allegations should not be hanging over a Respondent for a considerable time and that that is an important factor in the overall balance that the ET must conduct. 29. The most recent decision of the Court of Appeal to which I have been referred is Riley v Crown Prosecution Service

[2013] EWCA Civ 951

. The Claimant submitted that this case is wholly irrelevant because on the medical evidence that was considered by the ET in that case the prognosis was considerably less clear than in his case, and he is right in the sense that the evidence suggested that the litigation stress to which the Claimant in that case was subject might well last for a further two years. I refer to paragraph 20 first of all in order to note a passage to which Miss Tracy Forster drew my attention when she was making her submissions, which was that the Employment Judge in that case had rejected a contention that he should adjourn the case for a further period of months but give directions in the form of unless orders that might result in the claim being struck out. The Court of Appeal recorded that the Employment Judge had regarded that approach as a contrivance, and it does not appear the Court of Appeal disapproved of that characterisation of such an approach. I should also refer to paragraph 28, to which Miss Tracy Forster drew my attention, where the Court of Appeal said this: “28. It would, in my judgment, be wrong to expect Tribunals to adjourn heavy cases, which are fixed for a substantial amount of court time many months before they are due to start, merely in the hope that a claimant’s medical condition will improve. If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option available to a Tribunal. …” 30. As I have already indicated from the history, this case in 2012, in Pye v Queen Mary University of London , has already been considered by this Tribunal. As I have already indicated, this Tribunal allowed an appeal from the ET that had refused an adjournment of the hearing listed for February 2011, a hearing that was listed for some 30 days. At that stage, as I have already said, there had been three CMDs in 2010. The EAT recorded that there were at that stage 20 lever-arch files of documents with nearly 7,000 pages and 350 pages of witness statements, including a witness statement from the Claimant that was 185 pages long. On that occasion the Claimant’s request for an adjournment had been supported by a medical report. That report said that he was not fit to plead his case as present, that he needed urgent medical attention, and that if the case were postponed for at least three months that would allow him time for his health to recover sufficiently to present his own case. This Tribunal accepted that the effect of the report was that the Claimant needed at least three months to recover. 31. This Tribunal criticised the approach of the ET to the medical evidence. The ET, it said, had come dangerously close to expressing views it was not qualified to express, namely the real cause of the Claimant’s difficulties. It had also said wrongly that no medical evidence that dealt with the real likelihood of an effective hearing given the long history (by that it meant the history of his employment not the history of the litigation) this Tribunal said that the ET had been rightly concerned with the question of whether the Claimant might ever be fit but it had erred in deciding that no evidence about that was contained in the medical evidence that it had. The ET should have asked whether a fair trial was possible, and it did not do so. An adjournment should have been granted in the light of the decision of the Court of Appeal in Teinaz and on the grounds of general fairness. This Tribunal, it is right to note, was also influenced by the fact that the application for the adjournment had been the first such application, and it referred expressly, as I have already said, to the fact that the allegations in the case affected the reputation of the Respondent and should be dealt with as soon as possible. 32. I should make clear that while the cases articulate useful principles, each of them has been decided on its own facts and the facts of each of these cases in one or more respects differ from the facts that I have to deal with on this appeal. Discussion 33. Both sides accepted in their oral submissions that there comes a point in a long-running case where a tipping point is reached, and by that I think they meant a point where things have gone too far and a fair trial is no longer possible. Where they differed in their oral submissions was that Miss Tracy Forster, on behalf of the Respondent, submitted that that tipping point had been rightly identified by the ET as having been reached and the Claimant’s submission was that the tipping point had not yet been reached. He submitted in particular, as is evident from what I have said already, that many of the delays in the case had not been his fault; they were delays that were due to faults by the court and faults by the Respondent, and in that situation it was unfair that he should be penalised for matters that were not his fault. With that background, I turn to the grounds of appeal.(1) Inconsistency 34. This ground of appeal is part of an overall argument that the decision of the ET was perverse in the sense that it was a decision that no reasonable ET could have reached on the evidence, directing itself properly in law. The submission by the Claimant is that in paragraph 23 of the Judgment the ET said that the evidence of Dr Linke was accepted - and indeed the ET said more than once that they accepted the evidence of Dr Linke - but, says the Claimant, the effect of their decision is that they questioned the prognosis in paragraph 21 by saying that the present opinion was no more likely to be fulfilled than the last even when it was taken into account that cognitive behaviour therapy would start later that month. It is argued in the grounds of appeal that that “perversity” of approach affected the balancing exercise that the ET carried out in paragraph 23 of the decision. 35. In relation to this ground of appeal it is clear, in my judgment, from more than one passage in the ET’s decision that it accepted Dr Linke’s opinion about the diagnosis and that it also accepted his opinion about the prognosis. However, as the Respondent submits, there is no inconsistency and no perversity in accepting medical evidence of this type for what it claims to be: that is, an opinion and in particular an opinion about what is now wrong with the patient, about which an Employment Tribunal would be unwise to take issue (unless on the basis of cross-examination) and deciding what weight to give to an opinion about the likely course of the illness in the future. As to that, the doctor was expressing no more than his opinion. The ET, in my judgment, was entitled to express a doubt, as it did, about whether this prognosis would in fact come to pass. That was a rational and reasonable view. Some Tribunals might have approached the matter in a different way, but, as Miss Tracy Forster submits and as I accept, that response was within the reasonable range of conclusions open to an ET. 36. Miss Tracy Forster submitted that the case was ready to go ahead in February and what was in contemplation on the basis of medical evidence was a further adjournment for six months. It would of course be impractical for the case to resume precisely on the six-month anniversary of the date when the adjournment was granted. That would depend firstly on whether the Claimant was in fact fit to proceed in August, but if he was, it would then be necessary for there to be a further CMD for dates to be set and so on with the likelihood that a further hearing would not be taking place until early 2015. That would be some ten years after the first complaint made by the Claimant, and those were the practical implications of an adjournment for six months on the facts of the case. I accept that submission. 37. Further, the Claimant accepted in argument that Dr Linke was not saying that he would certainly be fit in six months time. Dr Linke was not in a position to say that. No request by the ET for clarification of Dr Linke’s evidence would have elicited an answer from him that the case would definitely be able to proceed in six months time. As a matter of logic, it ineluctably follows that there was a doubt about whether a hearing would be able to take place in six months time. The ET, in my judgment, was permitted, as it did, to take that doubt into account in deciding what to do next.

(2) Failing to Take Relevant Considerations into Account 38. This ground argues that the ET failed to consider whether the case could go ahead in February 2014 without the Claimant or whether it could go ahead in six months time in whole or in part. The ET noted but did not attach weight or enough weight to the fact that the Respondent was still in touch with its witnesses. The ET also failed to have regard to or to enquire about the type of case that this was and whether written records such as transcripts would be available. 39. I deal with the last of those points first. It is obvious to me, and as Miss Tracy Forster submits, that the ET was well aware of the nature of this case. That is clear both from the 22 January chronology, from the description of the case in the ET’s decision and from the material about the case in the earlier decision of this Tribunal when the first adjournment refusal was appealed. I reject the submission, if made, that the ET did not understand the nature of this case. As Miss Tracy Forster submits, although there are many documents in the case, at its heart are issues of the assessment of credibility of witnesses and in particular in relation to the alleged protected disclosures the issue of whether or not the matters that were disclosed were disclosed in bad faith. That is an issue that cannot be resolved without oral evidence and cross-examination. 40. I reject the submission that the ET did not attach weight or enough weight to the fact that the Respondent was still in touch with its witnesses. The fact that the ET expressly referred to this factor in its Judgment showed that it did take it into account, and, having taken it into account, matters of weight were for the ET and not for me. 41. I should deal in more detail with the suggestion that was made by the Claimant in his oral submissions that the case could have gone ahead in his absence. He submitted that the Respondent had accepted that 15 out of the 40 alleged disclosures that he had made were capable of being qualifying disclosures. He suggested that the case could have gone ahead in his absence in order to determine the issues that arose from that, but I reject that submission for the reasons that I have already touched on. It would be impossible to have a fair trial in the absence of the Claimant in February or indeed in the future, since, as I have already indicated, a key issue was whether disclosure was made in good faith. The ET could not possibly fairly decide whether or not the allegations were made in good faith on the basis of his lengthy witness statement without cross-examination. Good faith cannot be tested on paper. The ET cannot be criticised for not making this point expressly in its decision, and I reject the Claimant’s submission to the contrary. 42. The Claimant also submitted that a possible option would be to make an unless order. For the reasons that the Employment Tribunal gave in Riley and which were not disapproved of by the Court of Appeal, it seems to me that such an approach would be no more than a contrivance and the ET cannot be criticised for not adopting that approach. 43. I also reject the submission that the ET was obliged on these facts to ask for more medical evidence. The medical evidence was as clear as it was possible for medical evidence to be. The ET, as it said more than once in the course of its decision, was not questioning the medical evidence; the point, rather, was that it took that evidence at face value but, taking the evidence at face value in the light of history, there was a real doubt as to whether there could be a trial in six months’ time.

(3) Taking into Account Irrelevant Considerations 44. The submission in the amended Notice of Appeal here is that the ET misread aspects of the procedural history including in particular the adjournment in April 2013. That application had been agreed; so, it was not the Claimant’s fault. As a result, the ET took into account a procedural context that was unfavourable to the Claimant. As I have already said, the passage in the Judgment of the ET that gives rise to this criticism is in paragraph 15, an extract from which I have already read. 45. In the course of her oral submissions Miss Tracy Forster took me through the order that was made by EJ Housego on 22 January 2014. That order was not appealed, and in the light of that I am entitled to take the matters set out in it at face value notwithstanding the Claimant’s criticisms of that document. I am satisfied, having considered that document with Miss Tracy Forster, that there had been three adjournments of this case on health grounds: the first adjournment resulted from a refusal of an adjournment on health grounds by the ET, which was overturned on appeal by this Tribunal in the decision to which I have already referred. I am also satisfied that in May 2013 EJ Housego postponed the matter on health grounds at the Claimant’s request; and I am further satisfied that in July 2013 EJ Housego postponed the matter on health grounds at the Claimant’s request and that as part of his directions he ensured that there should be four months in which the Claimant could recover and two months in which he could prepare for the adjourned hearing on the basis of the then medical prognosis. 46. In the light of that, it seems to me that what the ET said in paragraph 15 of the Judgment is factually correct. It is correct that the hearing due to start on 15 April 2013 was postponed. The ET does not say, and it would not be correct to say, that that hearing was adjourned at the Claimant’s request, but the ET was right to say and was entitled to say in the next sentence that there had been multiple applications for adjournments by the Claimant or granted either by the EAT or by the Tribunal. While strictly speaking the choice of language may not be apposite in the sense that the EAT does not have a primary power to adjourn a hearing in the ET, it is absolutely clear that what the ET meant when they referred to that was the fact that the ET had refused an adjournment and the EAT on appeal had set aside that decision. 47. In the light of that I am not persuaded that the ET did misread aspects of the procedural history. It seems to me that in the material respects and in the light of the chronology set out in the 22 January 2014 order the ET was very well aware of the procedural history. If there is a mistake in paragraph 15 - and I do not think there is - it does not seem to me that that is capable of invalidating the ET’s exercise of discretion in this case.

(4) Failing to Take into Account the Impact on the Claimant 48. It is submitted in the amended grounds of appeal that the ET considered the nature and value of the claim at paragraph 9 and considered the effect on the Respondent if the claims were not resolved in paragraph 13 but did not consider the effect on the Claimant given his medical problems and prognosis. 49. Firstly, the impact on the Claimant is self-evident. From the passages of the decision of the ET that I have referred to, it is clear that the ET appreciated that the effect of the decision would be to bring the Claimant’s claim to an end, and it is clear that the ET was well aware of the potential value of that claim to the Claimant, as they described it when they set out the nature of the claim at the beginning of their decision. 50. So far as the point that the ET did not consider the effect on the Claimant given his medical problems and prognosis, there was simply no evidence before the ET about the effect on the Claimant of a possible strike-out of his claim, and in that situation the ET cannot be criticised for not taking that factor into account. I therefore reject this submission. Conclusion 51. It follows that I dismiss this appeal.