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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Pye v Queen Mary University of London (Practice and Procedure: Striking-out/dismissal)  UKEAT 0151_15_2210 (22 October 2015)
Cite as:  UKEAT 0151_15_2210
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Transcript of Proceedings
(The Appellant in Person)
PRACTICE AND PROCEDURE
The Appellant’s appeal against a decision of the Employment Tribunal striking out his claim was dismissed. This Tribunal held that the decision was open to the Employment Tribunal on the facts and was not “perverse”.
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
1. I will refer in this Judgment to the parties to this appeal as they were below. This is an appeal from a decision of the Employment Tribunal (“the ET”) sitting at East London on 3 February 2014. It was sent to the parties on 12 February 2014. The ET struck out the Claimant’s claims. The ET consisted of Employment Judge Housego and two lay members. Permission to appeal was given after an oral hearing by HHJ Eady QC. She gave permission to appeal on the amended Notice of Appeal. Those grounds are, in short, (1) inconsistency in the ET’s Judgment, (2) failure to take into account relevant considerations, (3) taking into account irrelevant considerations and (4) failing to consider the impact on the Claimant.
2. The background and procedural history are set out in the Judgment of HHJ Eady QC when she gave permission for this appeal to proceed. As she did, I emphasise that there have as yet been no findings of fact in this case. I refer to and read paragraphs 7 to 14 of her Judgment:
“7. I understand the Claimant was employed by the Respondent from 1 October 2004 to 26 April 2009. He filed an ET1 with the London East ET on 24 July 2009. The ET records this as having been on 25 August 2009 but the Claimant has an acknowledgment of his ET1 having been delivered by hand dated stamped 24/7/09. The Respondent served its ET3 on 25 August 2009, and it seems the ET may have confused those dates.
8. The Claimant’s claims are of direct discrimination and harassment because of his national origin (he is American), that he had been subjected to detriment as a result of having made protected disclosures, and that his subsequent dismissal, which was by reason of those disclosures, was automatically unfair, alternatively unfair for the purposes of section 98(4) Employment Rights Act 1996. He also makes claims of wrongful dismissal, unpaid holiday and absence of written reasons for dismissal. The claims made by the Claimant are fact-sensitive and raise matters going back to at least 2005.
9. There had been relatively early case management discussion (“CMD”) and directions, which resulted in the Respondent providing a list of concessions as to what is accepted had been protected disclosures on the Claimant’s part. [I pause there to say that in fact the concessions were that some of the matters relied on by the Claimant were capable of being qualifying disclosures. It is clear from the document I have seen that the Respondent did not concede that there had been any protected disclosures on the Claimant’s part.] Some of the matters relied on by the Claimant were accepted to amount to protected disclosures for the purposes of the statute, although the majority were not. The Respondent further contended that the Claimant had acted in bad faith.
10. The case was listed for a 30-day Full Merits Hearing, to start in February 2011. When it came before the ET (EJ Pritchard presiding) the Claimant applied for a postponement on medical grounds. That application was rejected, and, on 9 February 2011, the ET went on to strike out the Claimant’s case (written Reasons for that Judgment being given on 1 April 2011). The Claimant appealed to the EAT, and matters proceeded to a Full Hearing before Langstaff J on 23 February 2012. The appeal was upheld and the matter remitted back to the ET.
11. As the Claimant has 0observed, various of the delays up to that point arose for reasons for which he was not responsible; it would thus be wrong to characterise the delay in the proceedings as due to him alone. There was then a further delay arising out of the EAT’s order. It was not until 13 September 2012 that the remission was made to the ET. It then seems that it was only on 24 January 2013, that the ET took any further step in this matter, when it sought to re-list the matter for hearing. Initial attempts to list the Full Merits Hearing fell into difficulties, in part because the ET failed to ask the Respondent for dates to avoid but also in part because of concerns the Claimant raised arising out of his health and ability to participate in the case without various adjustments being made. It seems that those factors combined led EJ Housego, to whom the file had been assigned, to vacate an original re-listing in April 2013.
12. Meanwhile the Claimant made various applications, initially sent to the Regional Employment Judge. He complains that these applications were not addressed save that various directions were given in May 2013 by EJ Gilbert when she dealt with the file as Duty Judge. The Claimant complains of EJ Housego’s failure to engage with his various applications as evincing apparent bias. In any event, EJ Gilbert, in a telephone CMD on 10 May 2013, vacated the further re-listing of the remitted Full Merits Hearing, which had been due to commence on 13 May 2013 and finish on 9 August 2013, with a timetable to accommodate the Claimant’s need for reasonable adjustments.
13. A three-day CMD was then listed and took place before EJ Housego on 14 and 15 May 2013, the Claimant being unable to attend after the second day due to health reasons. EJ Housego drew up a provisional timetable for a further listing in September 2013 but that was again vacated after an application to adjourn on the Claimant’s part due to his ill-health. The matter was relisted for a Full Merits Hearing due to commence on 3 February 2014, again with a timetable allowing for the adjustments needed by the Claimant. The listing had been fixed for six months later because the medical evidence relied on by the Claimant stated he would not be fit for four months and EJ Housego allowed a further two months for preparation. Meanwhile the Claimant made various applications for EJ Housego to recuse himself. None were accepted.
14. On 27 December 2013, the Claimant submitted an application for a further adjournment on the basis of medical evidence, stating that his treatment had not yet started. EJ Housego considered this application but refused it, noting that the previous medical evidence had stated that there should be an improvement in the Claimant’s condition after four months but that he was now being advised that treatment had still not begun and a postponement was being sought until the end of March 2014. Observing this was the third occasion on which the Claimant had been unable to attend the ET for medical reasons, and the fourth time he had requested an adjournment - a characterisation of the history with which the Claimant takes issue - EJ Housego declined to accede to that application. In communicating that decision, sent to the parties on 22 January 2014, the ET further notified the parties that the Claimant should attend on 3 February 2014 if his position changed. Otherwise the ET would first consider whether to strike out his claim. As already indicated, that is indeed what occurred on 3 February, when the Claimant’s claims were struck out by the ET.”
The Underlying Claim
3. The ET described the underlying claim in more detail in paragraphs 9 to 12 of its Judgment as follows:
“9. The claim was filed on 24th July 2009 and claims unfair dismissal, race discrimination, breach of contract, holiday pay and failure to provide written terms and conditions. The unfair dismissal claim included public interest disclosure claims, and victimisation as a result of having made such disclosures. Dr Pye asserted that his professional reputation had been damaged to the extent that his academic career had been destroyed. Given that he was 45 when the claim was filed, the potential quantum is very large. The race claim relates to the claimant’s US nationality, and derogatory comments made about him because of his nationality.
10. He alleged that colleagues had made false and misleading statements to the MBA course review panel, and had manufactured student satisfaction survey data. He alleged that student grades were artificially inflated, and that a particular colleague favoured students of the same ethnic origin as himself. He asserted that what was going on with the grades was a “widespread fraud in the assessment process”, a misappropriation of financial resources and conflicts of interest. A colleague was passing himself off as “Dr” when, Dr Pye said, he had no such qualification. Another colleague was alleged intentionally to maximise the pass rate of his students to gain student favour.
11. His concerns were expressed to the highest level and, to summarise, covered up. Dual-use technology (unspecified) was the subject of theft and illegal export to Pakistan. As a result of his exposé of these issues the respondent was alleged to have manufactured an artificial redundancy in order to be rid of him.
12. These are allegations of great seriousness against a number of individuals, all of senior status, and against the institution. All were denied.”
The ET’s Decision
4. It is convenient to refer to the decision of the ET in some detail. I note also that there is a document in the bundle that contained the reasons for the EJ’s earlier refusal of the adjournment application. That document was sent to the parties on 22 January 2014, and in that document EJ Housego sets out in some considerable detail the procedural background to the claim and to the application for an adjournment in January 2014. I should make it clear that the Claimant disputes the accuracy of that document; indeed, he asserts that there are well over 100 errors in it.
5. The ET recorded in its Judgment that on 31 January 2014 the Claimant had made a further request by email for the hearing to be postponed. He had attached further medical evidence. This was a report dated 28 January 2014 from Camden & Islington NHS Foundation Trust, from the Complex Depression, Anxiety and Trauma Department. The ET said that the report was one and a half pages long. It was by Stuart Linke. He is a Consultant Clinical Psychologist and Head of the Complex Depression Anxiety and Trauma team. The ET recorded that the report set out the Claimant’s symptoms. It said that the Claimant was medically unfit to manage and plead his own case. The report also said that he had no other means of legal representation. It went on to ask for an adjournment on medical grounds for six months. The report said:
“… This period of time will allow Dr Pye to finally receive treatment so that he can recover sufficiently to manage and plead his own case.”
6. The ET noted that the gap in the medical evidence that there had been when EJ Housego had refused the Claimant’s request in the order of 22 January 2014 had been filled. The recent request of 31 January 2014 asked for a period of six months, by which time it was said that the Claimant ought to be able to conduct the hearing. The earlier report, by contrast, had said merely that there would be an update after three months.
7. The ET then set out the points that had been made by the Respondent at the hearing. The Respondent said there had been several different doctors’ reports, the reports were similarly worded, and the Respondent suggested that the doctors had been manipulated in order to say what the Claimant wanted them to say. The ET rejected those observations. The ET also noted that the Respondent had said that 108 days of sitting had been allocated in the case and vacated at short notice. The EJ said that he understood why the Respondent held the views that had been described in the decision but, referring to the status of the author of the report, the ET said:
“4. … we accept it entirely at face value. On the balance of probabilities, and while it is surprising that treatment should take so very long, it is a commonplace that mental health treatments are not given the priority that physical ailments receive, and while the statements in the reports that Dr Pye has not been at fault appear to be reciting what the doctors are told by Dr Pye, we accept that this is the case.”
8. The ET then said that waste of court time was an important factor in the light of the authorities that the Respondent had provided. East London is a busy centre, and there is always work, the ET said, for Employment Judges, but it is a different issue so far as members are concerned, if they stood down at very short notice, having been prepared to give lengthy periods of time to hear a case; but it was not a reason to refuse an adjournment in this case.
9. The ET had considered the order made by EJ Housego on 22 January 2014. It had adopted its conclusions. It had then considered whether the timescale set out in the medical report of 28 January 2014 should lead to a different outcome on this occasion. The ET said that the Respondent was still in contact with all its witnesses; all were still fit to give evidence. The difficulty, said the ET, was the further half a year, which was the minimum period required. The ET explained that the report did not use the word “minimum” but it was “of great concern” to the ET that six months was the consultant’s opinion as to the length of time it would take the Claimant to “recover sufficiently to manage and plead his own case”. The ET said that there was an “imponderable” in the word “sufficiently”. The ET took into account that a course of cognitive behaviour therapy was planned to begin in mid-February 2014 and that the doctor felt that the Claimant was eager to get better so that he could have his case heard. The prognosis was good for the Claimant to be fit enough to manage and plead his own case in six months time, the ET said, quoting from the report.
10. The ET went on to say that on the balance of probabilities the Tribunal with great misgivings (given the number of times the Claimant’s health had failed at the approach of a hearing) again accepted that at face value that is still another half-year before the case is heard. The ET said that this was a fact-sensitive claim with many facets; it had been lodged in August 2009 (everyone accepts that as an error), and that would mean that it would not be heard until August 2014. The ET said this:
“8. … There is the appreciable risk that history may repeat itself, and Dr Pye’s health again fail as the hearing day approaches. While not doubting the medical evidence, nor giving a medical opinion ourselves, Dr Linke is unable to assure us that the claimant will be well enough. The risk that he may not be cannot be ignored.”
11. The ET then described the underlying claims in the terms to which I have already referred. It said next:
“13. It is unsatisfactory, to say the least, that these people have had these allegations against them unresolved for 5 years.”
12. The ET then referred to the “particular difficulty of the shifting burden of proof” as a significant factor. The allegations themselves went back to the few days after the start of the Claimant’s employment with the Respondent; that was 1 June 2005, and so over nine years before any resumed hearing could take place. The ET said there was a good reason for a time limit in Employment Tribunal cases of three months. Even in the County Court the time limit is three years for personal injuries and six years for most other cases. It was really not realistic to expect it to be possible for there to be a fair hearing for the Respondent given this great passage of time. Given that the burden of proof shifts to the Respondent if the Claimant satisfies the Tribunal that there are matters calling for explanation (to paraphrase) it could not be fair, in the ET’s view, to the Respondents who require them to attempt to satisfy that burden on such old evidence, and that was a real possibility. The ET went on to observe that if the burden of proof did not shift to the Respondent, the Claimant would have failed in any event so that dismissing the claims would not result in any injustice.
13. The ET made clear that they had taken into account the Judgment of this Tribunal of 23 February 2012, in Pye v Queen Mary University of London  UKEAT/0374/11 and UKEAT/0447/11. The ET said that on that occasion the Claimant had successfully appealed against an earlier order striking out his claim. The ET distinguished the current position from the position that obtained then on a number of grounds. The summary of the EAT’s decision had pointed out that there had at that stage been no previous applications to postpone. Such applications had, of course, since been made. The hearings due to start on 15 April 2013 and 15 July 2013 were postponed. I should perhaps at this point read directly from the terms of paragraph 15 of the Judgment of the ET, since the Claimant takes issue with it. What the ET said was this:
“15. … The summary points out that there had been no previous application to postpone - now there have been further requests for adjournments - the hearings due to commence on 15th April 2013, and 15th July 2013 were postponed. Accordingly, there have now been multiple applications for adjournments made by Dr Pye, all granted, either by the EAT or by the Tribunal. …”
14. The ET then referred to paragraph 10 of the EAT’s decision. That recorded a medical opinion dated 1 February 2011 that the Claimant had then needed urgent medical attention. It appeared, the ET said, that he had still not had this three years later. The ET went on to say that it was clear from paragraph 14 of the EAT decision that the discretion to adjourn must be exercised judicially with due regard for reason, relevance and fairness. The ET said that fairness was of most concern to them. The ET took into account that, as related in the introductory paragraph of the EAT Judgment, the Claimant was in person, was unrepresented and said that he was unfit to attend. That meant, the EAT said, that, “the effect of refusing an adjournment was always likely to be equivalent to a strike out”, but, the ET said, it was its view that given the yet further lapse of time it was impossible now to hold a fair hearing. The ET said in paragraph 16 of its decision that it was faced not simply with an adjournment request on medical grounds; it had to take into consideration the effect of another half-year’s delay on the fairness of the hearing.
15. The ET noted the cases that were referred to in the Judgment of this Tribunal in this case. It summarised the Judgment of Peter Gibson LJ in Andreou v Lord Chancellor’s Department  IRLR 728 (and I shall cite from that later on in this judgment). Having cited the decision, the ET said:
“17. … The illness is genuine, and the report is evidence of it. That is not the issue here. It is the repetition of requests for adjournments, over a period of years. …”
16. The ET noted that in the other case a very short adjournment of two weeks had been at issue. The adjournment in this case that had been requested was 26 weeks, many times as long, and that was two years after the EAT decision and three years after the first application had been made on precisely the same health grounds, and had been refused. The Claimant takes issue with the calculation of time in that part of the decision. The ET referred to:
“17. … the helpful observations of Peter Gibson LJ that the EAT should be slow to interfere with the judgment of this tribunal, and then only on limited grounds. …”
17. The ET said that they must be particularly careful not to cause injustice. To grant an adjournment would be an injustice to the Respondent, which has a right to justice equal to the right of the Claimant. The ET then referred to a further distinction between the present case and the decision of the Court of Appeal. The decision had been overturned because the ET had doubted the medical evidence, opining that the Claimant there had chosen not to attend, voluntarily by necessary implication. The ET in this case, unlike the ET in Teinaz v London Borough of Wandsworth  IRLR 721, did not doubt the medical evidence. The ET quoted from paragraph 46 of the Judgment of Peter Gibson LJ in Andreou and went on to say that the entire paragraph had been quoted because in the view of the ET the context was relevant. The ET said that they were not criticising the substance or validity of the medical evidence; they asked themselves instead at paragraph 20 of the Judgment which was the lesser of two evils:
“20. … To deny the claimant the opportunity to have his case heard? Or to force the respondent to attend what we feel would be an unfair hearing? …”
18. The ET said that that conundrum could in that case be resolved only in favour of the Respondent, which had never had any choice in the matter. Referring to paragraph 23 of the Judgment of the EAT case, the ET said that they were left with a sense of “deja-vû”. There was in the consultant psychiatrist’s view in February 2011 on the information that she then had a reasonable prospect that the condition might improve so as to enable the Claimant to cope with the hearing. The ET in 2014 was in precisely that circumstance, with two other adjournments the previous year having taken place in addition. One factor on the scales, the ET said, had to be that it could be that the present opinion was no more likely to be fulfilled than the last, even taking into account the fact that the cognitive behaviour therapy would begin later that month.
19. The ET referred to paragraph 28 of the decision in this Tribunal, which mentioned:
“the human cost of the number of people against whom the Claimant had made allegations, sometimes in quite bitter terms, who had those allegations hanging over them until resolved, and in whose interests it was undoubtedly just that they should be resolved sooner rather than later.”
20. The ET said that those words had been written three years ago and the allegations still hung over the same people. That was most certainly later not sooner and necessarily unjust to those people to have those allegations hanging over them yet longer. The Judgment also pointed out that:
“part of the allegations suggested that the university had been corrupt in the way which it awards marks”.
21. They added that that was a serious allegation and should be dealt with as quickly as possible. Three years from then was inconsistent with such a requirement, in the view of the ET. The ET repeated in paragraph 23 of the Judgment that they had taken great care not to come to medical conclusions themselves. They repeated that they accepted the medical evidence entirely at face value; that included the professional opinion of an expert consultant psychologist that the Claimant should have recovered sufficiently, not fully, to be able to conduct his case. It was not a medical opinion to observe that that was said in February 2011 and did not eventuate. The ET said that they should not take it as a fact that the Claimant would be fit to continue in six months for the medical report did not say that. If, as the EAT Judgment had said at paragraph 31, the Tribunal in February 2011 were “rightly concerned about whether in this case the claimant might ever be fit to attend a tribunal called to hear what were his complaints against his employer”, then three years on it was inevitable that concern would be larger.
22. The ET’s conclusion, bearing in mind the overriding objective - that is, to deal with cases fairly and justly - set out in Regulation 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, was that it should strike out the claims on the basis of Rule 47 (non-attendance of a party) and Rule 37(1)(e) (it was no longer possible to have a fair hearing). The ET said that they knew that the Claimant had been given notice that the Tribunal would consider such a course as he had replied to a letter from the ET telling him that that was the case. The ET finally recorded that in coming to its conclusions they had had regard to the reason for the non-attendance as required by Rule 47.
23. The ET had power to strike out the claim if it considered that it was no longer possible to have a fair hearing (see Rule 37 in Schedule 2 to the 2013 Regulations). An ET could also dismiss a claim if a party did not attend provided it took into account the reasons why he did not attend (see Rule 47 of the same Regulations).
24. The law is well established as a result of several decisions of the Court of Appeal that bind this Tribunal. In particular, it is now clear that this Tribunal can only interfere with a decision of an ET to strike out a claim if that decision is Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223 unreasonable (see O’Cathail v Transport for London  EWCA Civ 21). In O’Cathail the Court of Appeal also observed at paragraph 43 in relation to the overriding objective set out in Rule 4 of the 2004 Regulations, which is in similar terms to the overriding objective in the 2013 Regulations:
“43. … That is the CPR objective transposed to the employment tribunal. “Justly” means that overall fairness is paramount in the exercise of the discretion. The claimant did not have a monopoly of the fairness factors in this case. It would not be fair for TfL to be repeatedly denied a hearing on the ground of the claimant’s recurrent health problems.”
25. The Court of Appeal went on to say in paragraph 45:
“45. Overall fairness to both parties is always the overriding objective. The assessment of fairness must be made in the round. It is not necessarily pre-determined by the situation of one of the parties, such as the potentially absent claimant who is denied an adjournment.” (Mummery LJ’s emphasis)
26. One of the early cases was Teinaz. The Court of Appeal made it clear in that case that if a litigant cannot attend, through no fault of his own, he will normally be given an adjournment - but the Tribunal is entitled to be satisfied that the inability to attend is genuine. If there is evidence that a litigant has been advised not to attend by a doctor, the Tribunal has a discretion to direct that further evidence be obtained, but a Tribunal will not necessarily err in law if it does not do so; whether it does will depend on the facts. On the facts of that case it had not been open to the Tribunal to conclude that, contrary to the only evidence before it, the Applicant’s absence from the hearing was a matter of choice for him. It was plain from the terms of their decision that the Tribunal had disbelieved the doctor’s medical note and on the evidence before them it had not been open to them to do so. That was a decision on its facts, and it is not, in my judgment, authority for any wider proposition about how a Tribunal should take medical evidence into account.
27. Andreou was, as the Claimant submits, clearly a different case on its facts. In particular in that case the Tribunal had held that the medical evidence was inadequate, and the Court of Appeal agreed with that assessment. The Tribunal had given directions to obtain better medical evidence, and the further medical evidence had not complied with the terms of the Tribunal’s order, as the Court of Appeal held. The Tribunal had then struck the claim out, and at paragraph 35 Peter Gibson LJ made it clear that the ET must be careful not to cause injustice to a litigant by striking out an entire claim. At paragraph 46 he said this:
“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  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.
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.
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.
51. It follows that I dismiss this appeal.