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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Morton v Eastleigh Citizens Advice Bureau (Rev 1) [2019] UKEAT 0208_18_0504 (05 April 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0208_18_0504.html Cite as: [2019] UKEAT 0208_18_0504, [2019] UKEAT 208_18_504 |
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At the Tribunal | |
On 29 January 2019 | |
Before
THE HONOURABLE MR JUSTICE LAVENDER
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MISS ROSE MORTON (The Appellant in Person) |
For the Respondent | MR GARY SELF (of Counsel) Instructed by: DC Employment Solicitors 21 Carlton Crescent Southampton Hampshire SO15 2ET |
SUMMARY
PRACTICE AND PROCEDURE - Postponement or Stay
The Employment Tribunal was not obliged to adjourn a Preliminary Hearing of the issue whether the Claimant had certain disabilities (in addition to the admitted disability of a binge eating disorder) either: (1) on the basis that the Claimant had not had a proper opportunity to prepare for the hearing; or (2) by reason of the Claimant's medical condition.
THE HONOURABLE MR JUSTICE LAVENDER
(1). Introduction
"1. … the claimant is not disabled by reason of the conditions of depression, anxiety, agoraphobia, whether cumulatively or in their own right, or as manifestations of the claimant's Binge Eating Disorder."
(2). The Appeal Hearing
"I have been assisted by a friend in completing this document due to my health issues. I apologise for the length of the document. This is for two reasons. Due to my social phobia and anxiety issues, if I get stressed during the hearing I may not be able to articulate myself. Therefore, I have written down as much as possible and ask that you accept this as a reasonable adjustment. Secondly, my health is variable. Sometimes I cannot write at all but when I do it tends to be long, rambling, repetitive and often difficult to make sense of. This is because of my anxiety and because I suffer from perfectionism. I need to write everything or I worry endlessly about it and also because I lack concentration at times which can make things repetitive."
(1) I asked the Claimant whether she was well enough to proceed with the hearing. She confirmed that she was and that she had her friend, Amy Westbury, with her to help her to find documents.
(2) I explained that I had read her skeleton argument carefully, and had borne in mind what she said in paragraph 1.
(3) I asked the Claimant to let me know if she needed a break or if she needed me or the Respondent's counsel to repeat anything. The Claimant's submissions in support of her appeal lasted from about 11 am to 1 pm and from 2 pm to 2.30 pm. On a couple of occasions in the morning the Claimant asked for and was given a short time to collect her thoughts. At about noon, a longer break of 10 minutes was taken. A further 10 minute break was taken in her reply submissions, between 3.50 and 4 pm. Thereafter, with my agreement, Miss Westbury made certain points on the Claimant's behalf, before the Claimant made her final submissions, ending at 4.15 pm.
(4) The Claimant said that she was not herself, but that she was in a better situation than she had been during the Preliminary Hearing. She said that she was referred last year to a mental health team, she was under the care of a psychiatrist and she has had better medication since Christmas, with the result that her performance at the hearing before me was not an indication of her ability to represent herself on 30 October 2017. I have not assumed that it was.
(3). The Conduct of the Claimant's Claim
"106. The OH Report stated that, although the Claimant was, when examined in July 2016, manifesting symptoms of heightened anxiety, low mood, disturbed sleep, loss of confidence and impaired concentration to a variable degree, such symptoms were a form of temporary stress reaction to an ongoing conflict with the Chairman."
…
"108. The OH report indicated that the Claimant had no fixed impairment of cognition and was of normal mental fortitude. It stated that, once her work-related issues and conflict had resolved, her symptoms would also resolve within a relatively short period of time.
109. The OH Report stated that the Claimant was currently fit to undertake her normal role, subject to resolving the apparent conflict between herself and the Chairman, and that "there is no reason, from an intrinsic psychological perspective as to why Ms Morton would not be able to render regular and effective service in the future."
110. The Claimant's alleged symptoms were (if and to the extent they existed, as to which no admissions are made) therefore temporary and not 'long-term'.
111. The OH Report noted that, although the Claimant had a history of previous anxiety and depressive related symptoms, these were "well-controlled and have not directly impacted on her capacity for work other than perhaps leaving her slightly vulnerable to stress and conflict" and that "she appears to have coped over a sustained period with the normal and inherent pressures or [sic] her role."
112. The Respondent accordingly asserts that the Claimant's alleged symptoms did not amount to an impairment that had a 'substantial' and/or 'long-term' adverse effect on her ability to carry out normal day-to-day activities."
"The Claimant is directed, in advance of the preliminary hearing, to forward to the Respondent copies of any medical evidence in her possession or power relating to the condition that she says renders her disabled, together with a statement from her setting out the impact upon her of that condition, with particular reference to her ability to carry out day to day activities."
"1. Further information on disability
1.1 By the 28th July 2017, the claimant supply the respondent with the medical evidence which is relied upon to establish that the condition of amounts to a disability as defined under the Equality Act 2010 (the Act) together with a statement, limited to 750 words, as to the adverse effects the condition has on the claimant's ability to carry out normal day-to-day activities and the date on which the condition started.
1.2 By the 4th August 2017, the respondent notify the claimant and the tribunal whether on the basis of the evidence supplied it continues to dispute that the claimant is a disabled person for the purposes of the Act, and, if so, on what basis.
1.3 By the 11th August 2017, if the respondent does not concede that the claimant is a disabled person, the parties agree on the identity of, and a joint letter of instruction to, a medical expert to report on the claimant's condition whose fee will be paid jointly by the parties. The claimant is represented under a legal expenses policy.
1.4 That expert is ordered to report by 15th September 2017.
2. Further information and List of issues
2.1. By the 28th July 2017, the claimant supply details of the basis of the claim for, including the dates, actions and names of those involved, sufficient for the respondent to understand the case it has to meet – this is in response to the respondent's request for further and better particulars.
2.2 By 4th August 2017 the parties are to file an Agreed List of Issues.
…
4. Bundle of documents for the Preliminary Hearing
4.1. By the 25th August 2017, a common set of core, relevant documents be agreed, assembled into a bundle, indexed and page numbered for use of the witnesses and the Tribunal, and limited without further direction to 100 pages not including the ET1, ET3, and the replies to the further and better particulars. The bundle be prepared by the respondent, one set provided to the claimant and its contents agreed by the parties. The limit on the bundle size may not be exceeded by more than 5% without the express prior consent of the Tribunal.
…"
"Conditions: eating disorder, depression, anxiety with agoraphobia and difficulties socialising."
"Unless there are exceptional circumstances, no application for a postponement will be granted. Any such application must be in writing.
If you or anyone coming with you to the Hearing has a disability that makes coming to the Hearing or communicating difficult, please tell the Tribunal office dealing with your case as soon as possible. We will make reasonable adjustments to the way we deliver our service where we can."
"… the Claimant has still not complied with Order 1.1 (to supply the respondent with the medical evidence which is relied upon to establish that the condition amounts to a disability), which makes is impossible for the respondent to comply with Order 1.2 (respondent to notify the tribunal whether it accepts the condition amounts to a disability)."
"The 'PIP Claim Medical Evidence for Rose Morton' only mentions a binge eating disorder (of which the claimant appears to have been diagnosed in September 2014, when she had then suffered from the condition for about a year) and makes no mention of work-related stress or depression/anxiety associated with that. That document was completed by the Claimant and verified by her GP in connection with the claimant's claim for disability benefits in April 2017.
Conversely, all Fitness Notes submitted by the claimant's GP to the respondent during the employment made no mention whatsoever of an eating disorder, but instead characterised the claimant's absences as due to work-related stress or "low mood".
The respondent had no knowledge about the claimant's alleged eating disorder until after her dismissal and, contrary to what the respondent has now claimed in its further & better particulars (attached) at point 6, her alleged conditions of eating disorder and agoraphobia are not mentioned at all in the report of Dr Shand (included within the attached records)."
"In view of this, the tribunal is requested to order:
1. that the claimant forthwith fully comply with Order 1.1, to include all of her GP's notes relating to the claimant's mental health during the period from September 2013 (when she first seems to have suffered symptoms of eating disorder) to the present date, coupled with an unless order in view of the claimant's previous failures to provide medical evidence; and
2. that the order dated 14th July 2017 be amended so that the respondent has 7 days from the date of receipt of the medical evidence to notify the tribunal whether or not it accepts that the claimant had a disability at the relevant times and that the parties have a further 7 days thereafter to agree a list of issues."
(1) The deadline of 4 August 2017 for filing an agreed list of issues passed and neither party ever produced a draft list of issues.
(2) The deadline of 11 August 2017 for instructing a joint expert passed and neither then nor at any subsequent stage was a joint expert instructed.
(3) The deadline of 25 August 2017 for agreeing a core bundle passed without either party making any proposals as to its contents. The Claimant told me that she was ill at the time, she was a litigant in person, she had provided the documents on which she relied and, in any event, she anticipated that the joint medical report would mean that a hearing was not necessary. The first draft bundle index was provided by the Respondent on 26 October 2017.
"We can confirm that we have received the Claimant's medic al evidence and that it shows that she had a binge eating disorder since at least September 2014 and that the condition continues.
We are of the view that the disorder is a disability and the Respondent therefore concedes that the Claimant had a disability, namely a binge eating disorder with the meaning of the DSM-V criteria, at all relevant times. Please note that this concession does not extend to any other medical conditions."
"the Respondent explains why they do not feel that my other conditions meet the criteria to qualify me as a disabled person under the Act;
that the joint medical report should still go ahead."
"EJ Harper therefore directs you to confirm by 9 October 2017 whether you rely on the other alleged disabilities – in which case an independent expert would need to be instructed on a joint instruction on a jointly funded basis. If, however, you rely only on the "binge eating disorder" as your disability there is no need to have such further expert evidence."
"I would assume that the issue of disability, in respect of all the conditions in question, can be satisfactorily addressed on the basis of the existing medical evidence and the Claimant's testimony (including oral testimony). I therefore propose that the matter be listed for a half day Preliminary Hearing to address disability and the other matters referred to in the case management summary. If either party objects it should let us know within 7 days."
"4. Once a medical expert has addressed these specific issues there is unlikely to be a need for a preliminary hearing. I suffer from agoraphobia so having to attend any hearings will be very stressful for me and I do therefore ask that you give consideration to this in making your decision.
…
8. The preliminary hearing scheduled for 30th October be postponed to allow time for a medical report and for the Respondent to provide their reasons for disputing my disability/diagnosis. Even if the Tribunal decides not to direct a joint medical report I wish to obtain my own medical evidence and need additional time to obtain this."
"…..
There have been long delays in dealing with this matter both by the Respondent and The Tribunal Service. I've only just received the Respondent's lengthy reasons for disputing my disability and the list of documents that they have requested that I check for 12 o'clock. It is now 11:45 and I will not be able to do this. We have not had the opportunity to agree on witnesses so I will not be able to call any to the hearing and I do not have adequate time to prepare for it.
I suffer from mental health issues including agoraphobia and anxiety and in order to attend a hearing which will be very stressful for me I need time to prepare not just my arguments but also time to prepare mentally for this. I will not be able to attend on Monday because of the short notice so I would be very grateful if you could put this forward to the Regional Judge to consider. I am feeling very stressed about this at the moment.
…."
"The Judge's reasons for refusing the request are that the claimant has had adequate notice of and time to prepare for the hearing."
(4) The Hearing on 30 October 2017
"I have referred to in the Reserved Judgment reasons, that the Appellant introduced an extract apparently from a book by Professor Fairburn in her closing submissions. Save for this the Appellant did not seek to introduce additional documents prior to the commencement of submissions."
"6. … the Claimant indicated that she was struggling and began for the first time that day (from my perspective) not to be fully focussed…"
"Whilst the claimant was presenting her closing submissions, she indicated that she could not continue, and it was agreed between the parties that she would have an opportunity to provide additional submissions, …"
(5) The Judgment of 14 December 2017
"23. … I judge that the report of Dr Shand fully supports a state of affairs where it was these work events which caused the stress and anxiety to exacerbate, and that such condition would subside as soon as the work issues were addressed…"
"At the outset of this hearing, the claimant sought a postponement in order to obtain a joint medical report on this issue. It is correct that there was reference in an earlier case management to the possibility of a joint expert report being obtained, in the event of the respondent not accepting that the claimant was disabled. Subsequent correspondence from the tribunal indicated, that Employment Judge Reed on 19 October 2017 wrote to the parties expressing the view that the remaining issues of disability could satisfactorily be addressed on the basis of the existing medical evidence and the claimant's testimony, and proposed this preliminary hearing address that issue. The parties were invited to express their views on the matter. The claimant repeated her view that a joint report should be obtained, and in the interim the preliminary hearing should be postponed, and the respondent proposed that Judge Reed's suggestion should be adopted. The matter came before Employment Judge Pirani, who having considered the documentation, refused the application on the grounds that the claimant had adequate notice, and time to prepare for this hearing. Having heard representations from the parties I saw no basis for interfering with Judge Pirani's determination."
(6) The Adjournment Application
"(1)(a). The Appellant did not state that she was making her application for a postponement because her health prevented her from coping with the hearing…"
"My notes record that nearing the end of her representations in respect of the postponement, the Appellant stated "All very stressful – I would prefer video conference, I could not ask a friend to come with me. They have three people here, - intimidating." I did not treat this as an indication that her health prevented her from presenting her case, or that this was a further ground for a postponement."
(7) The Grounds of Appeal
"8. In paragraph 2 of the judgement it states that the only reason that I requested a postponement was "in order to obtain a joint medical report". I did not ask for a postponement only on that ground, I also asked for a postponement because:
a. I had explained that I was stressed due to my mental health problems which had been exacerbated by the way the Tribunal Service had dealt with my requests for orders to be made and a postponement. Because of this stress I was unable to adequately represent myself. Due to my disability I get very easily stressed and cannot cope with this stress. During such periods my ability to think, act and communicate clearly is affected. This could have affected the Tribunals perception of me and it affected my ability to represent myself on that day.
b. I also asked for the postponement because I had not seen the bundle prepared by the Respondent until the hearing, despite a previous order that both parties should agree the bundle contents. This meant that information was included that should not have been included because it was not relevant to the case. It also meant that I did not have the normal minimum time frame of at least 7 days in which to prepare my response.
c. I had also requested a postponement because in the case management hearing on 14th July 2017, it was directed that the parties cooperate to prepare a list of issues for the hearing. The respondent wrote to me on 20/10/2017 saying that "Paragraph 2.2 of the same Order requires the parties to file an Agreed List of Issues. Now that disability is conceded, I will prepare a draft List of Issues for your comments." They never did compile the list. There was therefore no list of issues for the hearing. Nor were several other orders complied. There was no chronology relevant to the medical issues or cast list. The confusion caused by three separate judges making three separate decisions with regards to the postponement of the hearing meant that there was insufficient time for me to prepare these documents myself as I had been initially led to believe that the hearing would be postponed to allow time for a medical report. The Respondent admitted during the hearing that they knew that the hearing had not been postponed yet they did not prepare the necessary documents. The lack of these details at the hearing no doubt contributed to the substantial errors made about the basic facts of the case.
d. I had also requested a postponement because my request for an order that the Respondent explain their reasons for disputing my disabilities had never been dealt with.
9. The reserved judgement did not take into account the decision of Judge Harper and the confusion that had been caused by the involvement of three separate judges.
10. The reserved judgement stated that Judge Pirani "refused the application on the grounds that the claimant had adequate notice, and time to prepare for this hearing. Having heard representations from the parties I saw no basis for interfering with Judge Pirani's determination" (point 2). This statement confirms that the Tribunal did not take into account that I had not seen the bundle or any of the evidence or witness statement presented by the Respondent within the minimum period of seven days.
11. The lack of provision of this information within the minimum period meant that there was not sufficient time for me to prepare and submit a witness statement, skeleton arguments and chronology of relevant events and so I was unable to present all relevant issues. No doubt this led to the many errors of fact made in the decision.
12. The lack of minimum notice of the Respondent's evidence, witness statement and bundle also meant that I did not have sufficient time to obtain evidence from witnesses or additional medical evidence that would discredit the Respondent's arguments."
(8) Paragraphs 8(b) to 12 of the Grounds of Appeal
(8)(a) Paragraph 8(b): The Bundle of Documents
"(1)(b). The Appellant at the conclusion of her representations regarding her postponement application, did complain that she had received the documents from Mr Dunn late in the day, and that she had difficulties opening some electronic files sent by Mr Dunn. I treated this as a general complaint regarding the conduct of the Respondent's representative, and not that she was prejudiced by any late arrival of documents, or that as a consequence she was seeking a postponement of the Preliminary Hearing…"
(8)(b): Paragraph 8(c): List of Issues and Chronology
(8)(c): Paragraph 8(d): The Respondent's Reasons for Disputing Liability
(8)(d): Paragraph 9: Earlier Orders
(8)(e): Paragraph 10: Matters not taken into Account
(8)(f) Paragraph 11: Witness Statement, Skeleton Argument and Chronology
(8)(g) Paragraph 12: Additional Witnesses
(9) The Claimant's Medical Condition
(10) Summary