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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Andreou v Lord Chancellor's Department [2002] EWCA Civ 1192 (22 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1192.html Cite as: [2002] IRLR 728, [2002] EWCA Civ 1192

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Commissioner Howell QC)

		Royal Courts of Justice Strand London WC2 Monday, 22nd July 2002

Monday, 22nd July 2002

J U D G M E N T
1. LORD JUSTICE PETER GIBSON: The employer, the Lord Chancellor's Department, appeals from the order made by the Employment Appeal Tribunal on 4th March 2002 allowing the appeal of the employee, Sandra Andreou, from a decision sent to the parties on 27th November 2000 of an Employment Tribunal sitting in London Central. By that decision the Employment Tribunal struck out Mrs Andreou's originating application for non-compliance with an earlier order by the Tribunal requiring medical evidence to be produced in support of an application for an adjournment.
2. The background facts are these. Mrs Andreou has been employed by the employer since 1989. She has been a Crown Court Usher at Wood Green since 1981. By her originating application presented on 19th November 1998 she complained of "racial discrimination (harassing, bullying)". Her complaints go back to 1991, possibly to 1989. On 16th February 2000 she presented by way of an amendment a further complaint alleging that she had been victimised in that she had been asked to move from Wood Green Crown Court to Edmonton. The further complaint was treated as a second originating application. The employer denied the claims, asserting that most, if not all, of Mrs Andreou's claims were out of time.
3. On 25th April 2000 at a directions hearing the case was listed for a 10-day hearing commencing on 6th November 2000. Notice of that was sent to the parties on 14th July 2000.
4. On 27th October 2000 Mrs Andreou by letter to the Tribunal applied for a postponement of the hearing on the ground that she would not be able to attend. She said that she had been under tremendous pressure and had suffered loss of weight, sleepless nights and migraine. She also said that her representative from her union was no longer able to represent her. She enclosed a certificate dated 27th October 2000 in which her general practitioner, Dr Pal, had stated that she should refrain from work for 13 weeks and diagnosed, as the disorder causing absence from work, "anxiety/stress". The Tribunal refused that application on 2nd November, but stated that the application could be renewed at the hearing.
5. On 6th November the employer was represented by counsel, and the employer's witnesses attended. A solicitor, Mr Onuegbu, appeared for Mrs Andreou who did not herself attend. At the commencement of the hearing Mr Onuegbu applied for an adjournment on the grounds that Mrs Andreou was ill and was not available at the hearing and that it was in the interests of justice that she should be properly represented. The employer opposed the adjournment and argued that if the adjournment was refused, her claim should be struck out, as she was not present to prove her case.
6. So far as the application for Mrs Andreou was based on the ground that she had not had time since the union refused to represent her to obtain proper representation, that was rejected. The Tribunal then considered the application based on health grounds. It noted that the medical certificate did not say that Mrs Andreou was unfit to attend the Tribunal, but the Tribunal said that a welfare officer who was present at the Tribunal had indicated that she did not think that Mrs Andreou could attend that day. The Tribunal noted that the welfare officer was not medically qualified, but added that Mrs Andreou had not worked for two years on account of sickness. We are told that the welfare officer did not in fact give evidence. What was recorded in the Tribunal's decision was what Mr Onuegbu had said, having spoken to the welfare officer. The Tribunal was not satisfied that if it simply adjourned the matter Mrs Andreou would be in any better state to appear in six months time when, it said, a 10-day case would be relisted. It said:

"The medical evidence that we have been supplied with is inadequate."

7. The Tribunal took into account the arguments for the employer against an adjournment. But after referring to considerations against there being further delay, such as that the witnesses had had this matter hanging over them for a long time and that the smooth running of the Crown Court was being affected, the Tribunal said this:

"We have to balance this against a concern that Mrs Andreou does have medical difficulty, but we have inadequate evidence of her medical condition. In order to resolve the matter the Tribunal considers it needs better medical evidence and the decision and consequential orders set out below will enable the Tribunal to obtain that evidence and determine the issue on 13 November 2000."

8. The Tribunal in paragraph 10 gave its decision that it was adjourning the hearing for one week to 13th November on the following terms and conditions:

"(a) It is ordered that the Applicant should produce a medical report by 4 pm on Thursday, 9 November 2000 to the Employment Tribunals and to the Respondent stating in detail the following matters:-

(i)The nature of and prognosis for Mrs Andreou's illness.

(ii) Why Mrs Andreou was unfit to attend the hearing on 6 November 2000.

(iii) Why, if this is the case, Mrs Andreou is unfit to attend the hearing on Monday, 13 November 2000.

(iv) When, if ever, Mrs Andreou will be fit to attend a hearing for a period of 10 days consecutively and give evidence for a substantial period of that 10 days period consecutively.

...

(c) Depending upon the content of the medical report, the Tribunal will also consider the Respondent's application to strike out the Originating Applications on 13 November 2000, so Mrs Andreou should be prepared to show cause at that hearing why her complaints should not be struck out.

(d) If Mrs Andreou is fit and her Originating Applications are not struck out, then the Tribunal will commence hearing her claims after the applications have been heard on 13 November 2000 for the five days that will then remain of this hearing."

9. On 9th November shortly before the deadline of 4.00 p.m. Mrs Andreou's representative faxed to the Tribunal a medical report from Dr Pal with a covering letter dated 8th November in which Dr Pal thanked the Tottenham Legal Advice Centre for its undated letter and said in answer to four questions (which presumably corresponded to the four matters referred to in paragraph (a) of the Tribunal's terms and conditions):

"The answer to your questions are [sic] as follows:

1.I enclose a report of her medical condition from 1998.

2, 3 and 4.I am unable to comment. I have referred her to Dr Smith, Consultant Psychiatrist at St Ann's Hospital, St Ann's Road, London N15 who will be in a better position to help you.

I hope the above information will be helpful to you."

10. There is no evidence as to when it was that the reference to Dr Smith was made, nor in what terms; nor as to when the Centre wrote to Dr Pal, nor in what terms.
11. The report of Mrs Andreou's medical condition is in the same terms as a report which had earlier been made available and which was dated 31st July 2000, subject to one paragraph. That report cited the medical history of Mrs Andreou so far as known to Dr Pal from visits by Mrs Andreou to his practice. The one paragraph which is different is the final paragraph. In the earlier report Dr Pal had expressed the hope that the information was sufficient. In the report dated 8th November 2000 the report concluded:

"On 27th October 2000 she consulted me as she said she was feeling anxious, not sleeping well, lost one stone in weight, having migrainous headache and at times feeling suicidal. For this reason, I referred her to Dr Smith, Consultant Psychiatrist at St Ann's Hospital for a domiciliary visit and assessment."

12. Mrs Andreou's representative also sent to the Tribunal a letter dated 8th November from Dr D Ray, a consultant psychiatrist at St Ann's Hospital, in which it was stated:

"Your letter dated Nil was received by me on 7 November 2000 pm and I am to inform you that it is not possible to prepare a psychiatric report by the date you have asked for (by Wednesday/Thursday 4 pm). Sorry."

13. Again there is no evidence as to when or in what terms the Centre wrote the undated letter, nor as to why Dr Ray was writing rather than Dr Smith to whom Dr Pal said that he had referred Mrs Andreou.
14. A letter dated 10th November 2000 was sent to Mrs Andreou at the request of the Chairman of the Tribunal. This said:

"I refer to the Tribunal's order contained in paragraph 10(a) of the decision promulgated on 7th November 2000. The Chairman notes that the enclosures with your letter do not cover the matters ordered at paragraph 10(a)(ii), (iii), and (iv) and, although a GP's report has been produced it does not resolve unequivocally the points set out in paragraph 10(a)(i). For this reason the Chairman has asked me to write to you.

Under power conferred by Rule 4(7) of the Employment Tribunal Rules of procedure 1993, the Chairman is considering whether to strike out the whole or part of the Originating Application for failure to comply with the Order. If you wish to give reasons why this should not be done, please be prepared to do so at the hearing on Monday 13th November 2000."

15. On 13th November the hearing resumed. Mr Onuegbu told the Tribunal that he was only instructed to apply for an adjournment and had no instructions to represent Mrs Andreou in relation to the full merits hearing. Mr John Cavanagh QC, who appears before us today for the employer, also appeared before the Tribunal. He argued that the originating applications should be struck out either under rule 4(7) or rule 9(3) or rule 13(2)(e) of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 1993.
16. The Tribunal in its Extended Reasons considered first whether Mrs Andreou had complied with the order made on 6th November. The Tribunal said that it took the following matters into account:

"10.1The report of Dr M Pal, Mrs Andreou's general practitioner, dated 8 November 2000 does not state the nature and prognosis for Mrs Andreou's illness.

10.2The wording of Dr Pal's report is identical with that of the report of Dr Pal of 31 July save for the final paragraph.

10.3The final paragraph of Dr Pal's medical report of 8 November reveals that Mrs Andreou went to her GP on 27 October but did not obtain a medical certificate at that time which she made available to the Tribunal. Notwithstanding the visit on 27 October, Dr Pal does not make any attempt to give details of the nature of and prognosis for Mrs Andreou's illness.

10.4The fact that Dr Pal has referred Mrs Andreou to a consultant is not something from which this Tribunal can draw an inference that the nature of Mrs Andreou's illness is serious. The reference in the medical report is that Mrs Andreou has been referred to the consultant psychiatrist `for a domiciliary visit and assessment'. The report of Dr Pal does not indicate that Mrs Andreou has seen the consultant psychiatrist.

10.5The letter from the consultant psychiatrist is from Dr Ray and not from Dr Smith, who is referred to in Dr Pal's letter, and makes no mention of Mrs Andreou having seen Dr Ray or Dr Smith.

10.6Mrs Andreou visited Dr Pal on 27 October 10 days before the hearing and could have asked for a medical report at that time.

10.7It is not for the Tribunal to order a medical report merely because there is a reference in the Originating Application to a nervous breakdown, as has been suggested by Mr Onuegbu. It is for Mrs Andreou to prove her case.

10.8It is not for this Tribunal to comment on what advice Mrs Andreou may or may not have been given by her trade union representative which is a matter referred to by Mr Onuegbu.

10.9Mr Onuegbu suggests that the Respondent is not prepared to accept that Mrs Andreou is ill and that they have produced no evidence to the contrary. It is not for the Respondent to prove that Mrs Andreou is ill That is a matter for Mrs Andreou to prove.

10.10It is immaterial whether Mrs Andreou's trade union representative was a full-time representative in the employment of the Respondent or a part-time representative in the employ of the Lord Chancellor's Department. The representative was bound by union rules.

10.11Mrs Andreou has been notified by the letter of 10 November 2000 that she would be required to show cause and Mr Onuegbu has made submissions on this matter to the Tribunal in accordance with Rule 4(7) of the Rules of Procedure."

17. The Tribunal concluded that Mrs Andreou had not complied with the order made on 6th November. It pointed out that the Tribunal had not required a report from a consultant psychiatrist and that the order made was for a medical report.
18. Rule 4 is headed "Power to require further particulars and attendance of witnesses and to grant discovery". Rule 4(1) gives the tribunal power to require further particulars and discovery, and rule 4(3) allows the tribunal to require a party to give written answers to certain questions. Rule 4(7) gives the tribunal power to strike out the whole or part of an originating application if a requirement under rule 4(1) or (3) is not complied with. The Tribunal decided to strike out for non-compliance with the order in accordance with rule 4(7).
19. In case the Tribunal was wrong on that, it considered whether the originating applications should be dismissed under rule 9(3). This provides:

"If a party fails to attend or to be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date: provided that before dismissing or disposing of any application in the absence of a party the tribunal shall consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 8(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

20. The Tribunal, having noted the terms of Rule 9(3), referred to the fact that Mr Onuegbu had applied for an adjournment of the hearing. The Tribunal then said that it took the following matters into account in considering the application for an adjournment:

"15.1The evidence in relation to Mrs Andreou's health remains the same as at the hearing on 6 November. The medical report of Dr Pal of 8 November is exactly the same as that of 31 July 2000 save for the final paragraph which indicates that Mrs Andreou visited her general practitioner on 27 October.

15.2Mrs Andreou has had ample time to produce medical evidence and has failed to do so.

15.3The complaint relates to matters that go back as far as 1989, some 11 years ago.

15.4We have taken into account the stress on other members of the staff at the Wood Green Crown Court where the Applicant worked. We have been told by Mr Cavanagh that one of the individuals named in Mrs Andreou's complaint has been off work for two months with stress.

15.5We have been told that the case is damaging morale and interfering with the smooth running of the Wood Green Crown Court.

15.6No evidence has been put forward by Mrs Andreou as to when she will be fit to attend a 10-day hearing."

21. In paragraph 15.7 it referred to an EAT decision on which Mr Onuegbu had relied but which the Tribunal considered to be distinguishable; and it is common ground before us that that case is not relevant. The Tribunal in paragraph 16 said that having taken those matters into account, its decision was to refuse Mr Onuegbu's application for an adjournment. In paragraph 18 the Tribunal expressed itself as satisfied that Mr Onuegbu was not representing Mrs Andreou in relation to the full merits of the case and that she was not there. It therefore announced its decision to dismiss the originating applications in their entirety in her absence.
22. Finally, the Tribunal considered rule 13(2)(e), which allows the Tribunal to strike out any originating application on the ground that the manner in which the proceedings had been conducted by a party has been scandalous, frivolous or vexatious. The Tribunal took into account the following matters:

"21.1Mr Onuegbu on behalf of Mrs Andreou has been given an opportunity to show cause why an order under Rule 13(2)(e) should not be made.

21.2The application to adjourn by Mrs Andreou was made late.

21.3Mrs Andreou has produced inadequate medical evidence notwithstanding the order of the Tribunal and the additional week in order for her to furnish medical evidence.

21.4The Tribunal is satisfied that the manner in which Mrs Andreou is conducting these proceedings is frivolous and vexatious."

23. It then said that it had decided to strike out the originating application in its entirety as frivolous and vexatious.
24. Mrs Andreou appealed to the Employment Appeal Tribunal against the decisions of the Tribunal on 6th November and 13th November. The EAT allowed her appeals to go to a full hearing. At that hearing Mrs Andreou was represented by counsel other than Ms Catrin Lewis who appears for her before us today.
25. The EAT rejected an argument that the Tribunal's decision on 6th November to adjourn for a week was perverse or otherwise erroneous in law. Mr Commissioner Howell QC, giving the judgment of the EAT, said that it was entirely reasonable for the Tribunal to fix a timetable "albeit short" in the hope that better evidence could be provided the following week, when five of the ten days allocated to the hearing would still be available, so that at least some progress might still be made.
26. The EAT then considered the three bases under the rules on which the Tribunal in its second decision had dismissed or struck out the originating applications.
27. The EAT said that the Tribunal had clearly misdirected itself in striking out under rule 4(7), which related to particulars, discovery of documents and answers to interrogatories to clarify and determine the substantive issues between the parties.
28. On Rule 9(3) the EAT accepted and noted that it was not disputed for Mrs Andreou that it was within the power of the Tribunal to dismiss the originating applications in the absence of the attendance or representation of Mrs Andreou. That was on the ground that the allegations of fact in the originating applications necessary to establish Mrs Andreou's case of discrimination and victimisation would not have been proved because no evidence had been called in support; and reference was made to the remarks in this court in Mensah v East Hertfordshire National Health Service Trust [1998] IRLR 531 at paragraph 16. But the EAT said that to exercise the power to dismiss, coupled directly, as it was, with the rejection of any further adjournment, was unreasonable in the circumstances of this case on 13th November 2000.
29. The EAT held that it was also unreasonable to strike out the originating applications as frivolous and vexatious. The EAT said:

"There was, in our judgment, no proper ground or evidence identifiable from the Tribunal's decision to warrant the conclusion either that the complaints made by Mrs Andreou in her Originating Application were themselves inherently frivolous and vexatious, or that the manner in which she and her representative were seeking to obtain a longer adjournment based on the most recent medical evidence and her reference to a consultant psychiatrist for assessment fell within that description."

30. The EAT criticised the reasons given by the Tribunal in paragraph 15 of the Extended Reasons given in the decision of 13th November. The EAT commented on what was said in paragraph 15.1 in this way:

"That, in our judgment, substantially misstates the effect of the most recent medical evidence, since it omits to mention by far the most significant points in it: that on her consultation with Dr Pal on 27 October she had been immediately referred to a consultant psychiatrist for assessment, and the express reference to feeling suicidal. Those in our judgment should confirm to any reasonable person, in conjunction with the other specific details given, that she was considered to be suffering from a serious medical condition even if its precise nature and any psychiatric diagnosis remained to be determined following the specialist assessment, which of course required more time than the tribunal's original directions given in ignorance of these points had allowed."

31. The EAT then said of paragraph 15.2:

"20.The Tribunal's second reason at paragraph 15.2 that:

"Mrs Andreou has had ample time to produce medical evidence and has failed to do so"

similarly fails in our judgment to take account of what was actually said in the new evidence, and of what we are satisfied was a clear application on reasonable grounds by Mrs Andreou's representative at the hearing on 13 November 2000, for at least some more time for specialist evidence and assessment of her condition now that a Consultant was involved, rather than having her case immediately dismissed with knowledge about her condition still incomplete. In our judgment, in those paragraphs (as in their earlier references to Dr Pal's report in paragraphs 10.1 - 10.5 of their Extended Reasons, where what is said about the medical certificates is also clearly inaccurate) the Tribunal did misdirect themselves about the effect of the medical evidence before them on 13 November 2000; or alternatively failed to take account of its effect determining that the proceedings should be immediately struck out or dismissed. We are satisfied they thereby acted unreasonably and erroneously in law so that their second decision has to be set aside."

32. The EAT therefore allowed the appeal against the second decision of the Tribunal to strike out or dismiss the originating applications and remitted the case to be heard before a differently constituted tribunal.
33. On this appeal Mr Cavanagh accepts that the Tribunal was wrong to strike out the originating applications under rule 4(7) and no longer relies on the alternative finding of the Tribunal under rule 13(2)(e). But he argues that it was open to the Tribunal to strike out Mrs Andreou's case under Rule 9(3). He relies on what he calls the wide discretion given by that rule to the Tribunal as to whether or not to adjourn. Given that Mrs Andreou was represented on the question of adjournment by Mr Onuegbu, for my part I doubt if the relevant power to adjourn is that contained in rule 9(3). It was consequent on the refusal of an adjournment that Mr Onuegbu no longer represented Mrs Andreou when the Tribunal would have had to consider the question of the substantial merits. It seems to me therefore that because Mr Onuegbu was present, the opening words of Rule 9(3) were not satisfied. However, there is a power to adjourn given by rule 13(7) of the rules, and Mr Cavanagh submits that so long as the Tribunal exercises the discretion to adjourn judicially, that discretion is complete. He argues that the EAT can only overturn a tribunal's decision on adjournment on well recognised but limited grounds. Thus it can do so if the Tribunal has failed to take account of a relevant consideration, or has taken account of an irrelevant consideration, or has acted perversely. He argues that it is only in rare cases that a perversity appeal will succeed before the EAT, because the appellant must establish that the decision made in exercise of a discretion was not a permissible option for the Tribunal. He points out that in the present case the EAT has found that the Tribunal was perverse in its views. He submits that the EAT has substituted its own view as to what should have been done for the view reached by the Tribunal in which the discretion was vested. He challenges in particular the correctness of the criticisms made by the EAT of the comments which the Tribunal made in respect of the medical evidence provided by Mrs Andreou.
34. Ms Lewis supports the reasoning and conclusion of the EAT. She submits that the Tribunal's decision was indeed perverse and that the EAT rightly so found. She submits that the Tribunal also took into account irrelevant matters. She said that it treated the three separate applications under the three provisions of the rules by which it decided that the originating application should be struck out or dismissed as overlapping and that thereby irrelevant matters were taken into account. She further submits that the prejudice to Mrs Andreou in the Tribunal proceeding with the hearing on 13th November far outweighed any potential prejudice to the employer had there been an adjournment.
35. There is no doubt but that the exercise of discretion by a tribunal, particularly in relation to a case management matter such as whether there should be an adjournment, is one with which the EAT should be slow to interfere, and then only on limited grounds. There is no dispute but that such grounds include perversity. It is also clear that where the consequences of the refusal of the adjournment are severe, such as when it will lead to the dismissal of the proceedings, the Tribunal must be particularly careful not to cause an injustice to the litigant seeking an adjournment: see my remarks in Teinaz v London Borough of Wandsworth (unreported) 16th July 2002 at paragraph 20. In that judgment I made some general observations on adjournments:

"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."

36. Similarly, Arden LJ said at paragraph 37:
37. 37.It is to be noted that the standard of review as respects 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 balancing exercise performed by the inferior tribunal unless its conclusion was clearly wrong."
38. She also said in paragraph 39:

"While any tribunal will naturally want to be satisfied as to the basis of any last minute application for an adjournment and will be anxious not to waste costs and scarce tribunal time or to cause inconvenience to the parties and their witnesses, it may be that in future cases like this a tribunal or advocates for either party could suggest the making of further enquiries and a very short adjournment for this purpose."

39. Buckley J agreed with both judgments.
40. Those remarks were made in the context of a case where the employee applying for an adjournment had a medical note advising him not to attend an imminent tribunal hearing because he was suffering from severe stress, but the Tribunal had doubted the medical note and had described the applicant as having chosen not to attend the hearing and said that the applicant's absence had reinforced the Tribunal's suspicion. The Tribunal had refused an adjournment and consequently dismissed the proceedings. The EAT allowed the appeal on the basis that the Tribunal had taken into account a consideration which should not have been taken into account, and this court agreed with the EAT.
41. The circumstances in the present case are, in my view, different from the Teinaz case. On 6th November 2000 the Tribunal was faced with an application for an adjournment on medical grounds when the medical certificate, which had been given on 27th October 2000, did not address the question whether Mrs Andreou was or was not fit to attend the Tribunal hearing. The fact that a person is certified on medical grounds as not fit to attend work does not automatically entail that that person is not fit to attend a Tribunal hearing, though very often that will also be the advice of the medical practitioner. Mrs Andreou had been off work for some two years. She had seen Dr Pal on 27th October, that is to say some 10 days before the hearing, which had been fixed for many months to commence on 6th November. Yet, neither she, nor her solicitor when he was instructed to seek an adjournment, had obtained a proper medical certificate addressing the question whether she was fit to attend the Tribunal hearing. There was no evidence, as I have already noted, as to precisely when Dr Pal had referred Mrs Andreou to a consultant psychiatrist. Indeed at the original hearing on 6th November it does not appear that the Tribunal was informed of the reference. That appeared subsequently in the medical report of 8th November and, as I have noted, we do not know when or in what terms the reference was made. The Tribunal, knowing that it was for an applicant for an adjournment to satisfy it that an adjournment was appropriate, could arguably have dismissed Mrs Andreou's application, as the employer had urged, on the basis that she had not discharged the burden on her. But instead the Tribunal adopted the sensible course of giving Mrs Andreou a further limited opportunity of making good the deficiencies in her evidence in support of her application for an adjournment. Further, it helpfully spelt out what information was required. Although the EAT described the timetable as "short", I have to say that in the circumstances the timetable seems to me to have been not ungenerous to Mrs Andreou. Moreover, the Tribunal was at pains to point out that on 13th November the Tribunal would also consider the employer's application to strike out. Mrs Andreou and her representative could have been in no doubt as to what might happen if the medical report which was to be produced in accordance with the Tribunal's order did not satisfy the Tribunal.
42. The evidence produced just within the deadline was to my mind a woefully inadequate compliance with the Tribunal's order. Mrs Andreou had been ordered to produce a medical report stating in detail four matters. She had not in fact complied with any of those requirements. Dr Pal's medical report and letter did not state in detail, or at all, the nature of, and prognosis for, Mrs Andreou's illness. Dr Pal did not attempt to provide the details required in paragraphs 2 to 4 of the order. There is no evidence, as I have indicated, as to the date or terms of the reference to Dr Smith. There is no evidence as to why Dr Ray was instructed, nor when he was instructed, instead of Dr Smith. There is no evidence as to what it was that the Centre told Dr Pal in order to obtain a medical report in response to the Tribunal's order. Furthermore, before the hearing on 13th November Mrs Andreou had been told by the letter from the Tribunal of 10th November that the Chairman did not consider that what had been provided complied with the Tribunal's directions. She had been specifically warned that a strike out was being considered, and yet the medical evidence put before the Tribunal on 13th November was not amplified or strengthened in any way.
43. The first criticism made by the EAT, and supported by Ms Lewis, is that the Tribunal substantially misstates the effect of the most recent medical evidence by omitting to mention significant points in it when the Tribunal made the comment in paragraph 15.1 which I have cited. I agree that the Tribunal in paragraph 15.1 did not refer to every matter which had been contained in the final paragraph of the medical report of 8th November. But the Tribunal had already cited the whole of that paragraph earlier in its decision. It had already commented on the reference made by Dr Pal of Mrs Andreou to a consultant: see paragraph 10.4 of the Extended Reasons. In my judgment the Tribunal cannot fairly be accused of failing to take account of these matters. The EAT's and Ms Lewis's real complaint is that the Tribunal was not prepared to infer from what Mrs Andreou had told Dr Pal and is recorded in the final paragraph of his report, and from the fact of the reference to the consultant psychiatrist, that she was considered by Dr Pal to be suffering from a serious medical condition. With all respect to the EAT and Ms Lewis, I have to disagree with them. Dr Pal is recording in the final paragraph of his medical report only what Mrs Andreou told him on 27th October and, in saying that he had made the reference for that reason, he says nothing of what he himself thought of Mrs Andreou's condition. What inference is to be drawn from the fact that he did refer her to a consultant psychiatrist for a domiciliary visit and assessment is left, to my mind, entirely uncertain. Of course doctors do not lightly refer patients to consultants. Dr Pal may have thought that she did indeed suffer from a very serious medical condition. He may have made the reference purely as a precaution, not having entire belief in the serious matters which she had reported to him. It is impossible to say, because Dr Pal himself does not say what he himself thought. In my judgment it cannot be said that no reasonable tribunal could reach the conclusion which the Tribunal reached when concluding that it could not draw an inference that the nature of Mrs Andreou's illness was serious. In my judgment the criticism made of what the Tribunal said in paragraph 15.1 is not justified.
44. The second criticism made by the EAT is of the Tribunal's comment in paragraph 15.2 that Mrs Andreou had had ample time to produce medical evidence but had failed to do so. The EAT said that the Tribunal had failed to take account of the new medical evidence. That is the same point as that just discussed. The EAT also said that the Tribunal had failed to take account of "the clear application on reasonable grounds by Mr Onuegbu for at least some more time for specialist evidence and assessment of her condition now that a Consultant was involved, rather than having her case immediately dismissed with knowledge about her condition still incomplete". To say that the Tribunal failed to take account of the application is, with respect, a little unfair. The Tribunal's decision is unusually full and very careful, with every relevant fact mentioned. The Tribunal was well aware of what Mr Onuegbu was saying and expressly stated that it had taken into account all the submissions made to it, whether oral or in writing: see paragraph 6. But whilst the view taken by the EAT is one which, had it been the body in whom the discretion to adjourn was vested, might well be said to be reasonable, that is not material. The question was whether the Employment Tribunal was perverse in reaching the conclusion which it did.
45. I find it impossible to say that no reasonable tribunal could have expressed the view which the Tribunal did in paragraph 15.2. I repeat that on 6th November Mrs Andreou in seeking an adjournment on medical grounds should then have put the relevant medical evidence before the Tribunal to justify the adjournment which she sought. It is not as though she was suffering from some new ailment which had suddenly afflicted her at that point. She had been given a further opportunity to make good the failure to provide proper medical evidence, having been warned by the earlier decision that what had been put in front of the Tribunal in the form of the medical certificate was inadequate. She had obtained a week's adjournment. I do not see that the Tribunal can be shown to have acted in a perverse way in concluding that she had had time to produce the relevant evidence. What was crucial was whether or not Mrs Andreou was fit enough to attend the Tribunal hearing, a matter normally within the competence of any doctor. We do not know what were the terms in which Mrs Andreou or her representatives had sought from Dr Pal the information which the representative must have known was needed in order to satisfy the Tribunal, but what is plain is that the medical evidence simply does not focus on that crucial matter.
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.
47. I should add that I do not accept Ms Lewis's submission that this is a case where the Tribunal took into account irrelevant matters or failed to take into account relevant matters. It seems to me clear that the Tribunal referred to all the relevant matters in its two decisions. I also do not accept the submission that because the Tribunal was prepared to dismiss or strike out on three grounds, two of which have now been shown to be erroneous or are abandoned by the employer, the Tribunal took into account irrelevant considerations. There is no evidence that it did so. On the contrary it made clear what matters were taken into account on each ground, and they were relevant matters which led to its exercise of discretion.
48. I therefore respectfully disagree with the EAT's conclusion that the Tribunal's decision to refuse to adjourn was perverse or otherwise proceeded on an error of law. I did not understand Ms Lewis to suggest that if the Tribunal's decision was reached without fault, the Tribunal's further conclusion to dismiss the originating applications under rule 9(3) could be impugned.
49. For these reasons, I for my part would allow the appeal, set aside the EAT's order and restore the decision of the Tribunal to refuse an adjournment and to dismiss the originating applications.
50. LADY JUSTICE ARDEN: I too agree that this appeal must be allowed, and I agree with the reasons which Peter Gibson LJ has given, in particular what he has said about the Teinaz case.
51. What is in issue in this case is the exercise of a discretion by the Tribunal. The decision in Teinaz stressed that there is a high hurdle which an appellant has to overcome in order to succeed in a complaint that the exercise of discretion by the tribunal was improper and should be set aside. I add a few observations of my own because this decision is of great importance to Mrs Andreou.
52. The Employment Appeal Tribunal took the view that the Employment Tribunal had misunderstood the medical evidence before it and, in particular, that it had failed to appreciate that Mrs Andreou was suffering from a serious illness requiring a consultation with a consultant psychiatrist. The Employment Appeal Tribunal also took the view that the Employment Tribunal wrongly concluded that she had failed on 13th November 2000 to produce medical evidence.
53. In the Teinaz case I stated in my judgment that an appellate tribunal could review the exercise of discretion by an appeal tribunal if the inferior tribunal had misunderstood the facts. The question therefore is whether that is what had happened here.
54. In their first decision the Employment Tribunal had made it clear, as they were entitled to do in the exercise of their discretion, that they required medical evidence to show not merely that Mrs Andreou was ill, but also details of its nature and prognosis. This would enable the Tribunal to be satisfied that Mrs Andreou's illness prevented her from attending the Tribunal and, if they were so satisfied, the evidence would enable them to form a view as to how long the illness was likely to last.
55. It was really the first of these issues that was crucial. As Peter Gibson LJ has said, there was no real doubt that Mrs Andreou was suffering from anxiety and stress. The question was: how serious was it? I have no reason to doubt that the Employment Tribunal would have expected that any medical practitioner could do no more than give his best estimate as to prognosis.
56. That the Tribunal's concern was as I have stated is shown by paragraphs 7 and 8 of its first decision, which stated:

"7. We next considered the application for an adjournment on the grounds of Mrs Andreou's health. The Tribunal had before it a certificate from her General Practitioner stating that she should refrain from work for 13 weeks from 27 October. The certificate does not say that she is unfit to attend the Tribunal. Nonetheless she is not present and a welfare officer, who was there, said that she did not think that Mrs Andreou could attend today. However, that welfare officer was not medically qualified. We also know that Mrs Andreou has not worked for two years on account of sickness.

8. We are not satisfied that, if we simply adjourn this matter, Mrs Andreou will be in any better state to appear in six months time than when a 10 day case would be re-listed. The medical certificate that we have been supplied with is inadequate."

57. Accordingly, the directions as to medical evidence which the Tribunal made were directions for evidence as to the nature of the illness, among other matters.
58. The new evidence that was presented to the Employment Tribunal pursuant to the directions did not however address this point. Ms Catrin Lewis for Mrs Andreou submits that it must have been obvious that if Mrs Andreou was not fit to attend work because of stress and anxiety, she was not fit to give evidence about what had happened at work. I do not accept this. It was a matter for evidence. But even if it were the position that there was a close relationship between those two matters, that makes it all the more surprising that the general practitioner did not address that point. Accordingly, it was reasonable for the Tribunal, in my judgment, to expect the general practitioner to be able to state that she was not fit to give evidence at the adjourned hearing, even if he did not feel able to give a diagnosis or an opinion as to prognosis. It follows, in my judgment, that the Employment Appeal Tribunal were in error in concluding that the Employment Tribunal had misunderstood the evidence.
59. If the Employment Tribunal did not misunderstand the evidence, then it had to be shown before the Employment Appeal Tribunal that the decision of the Employment Tribunal was perverse. In that connection, Ms Catrin Lewis makes essentially four points. First, she submits that the Tribunal's reasoning on the question of adjournment overlapped with its conclusion, which was held to be erroneous, that the complaint was frivolous and vexatious. In my judgment this point is not a good one because the decision on adjournment was made before the decision on the latter issue and was separate from it.
60. Second, she submits that in giving its reasons for refusing an adjournment the Employment Tribunal inaccurately summarised the effect of the new evidence. But, as Peter Gibson LJ has explained, the Tribunal had already set out the material paragraph of Dr Pal's report and were clearly aware that there had been a referral to a consultant and that that was new evidence.
61. Third, Ms Lewis submits that there was no logic in simply using the five days of tribunal time that was left. But it seems to me that there may well have been every purpose in using that time so as to reduce the time that had to be found thereafter, which might perhaps have been used simply for written submissions.
62. Fourth, Ms Lewis submits that a further short adjournment was improperly refused. A short adjournment was indeed requested, but there was no evidence on which the Tribunal could act as to the proper length of such an adjournment.
63. Accordingly, in my judgment, these points neither individually nor cumulatively show that the Employment Tribunal's decision was perverse. That means that in the circumstances the decision of the Employment Tribunal must be restored.
64. It is relevant to ask, in conclusion, what could have been done to avoid this unfortunate turn of events and result. First, it seems to me, those advising Mrs Andreou should specifically have addressed the Tribunal's concern which I have explained above. Second, it would have been helpful if they had produced the letters of instruction to the general practitioner and their subsequent letter to the consultant. If the Tribunal had formed the view that the general practitioner, for instance, had been insufficiently instructed, it might have been more willing to grant a little more time. Third, the Tribunal had written to those advising Miss Andreou on 10th November 2000, stating that it was the Chairman's opinion that the directions as to evidence had not been met and that the Chairman was considering whether an order should be made striking out the application. That letter should have signalled a strong warning to those advising Mrs Andreou that they needed to obtain further evidence. Fourth, if those advising her were making an application to obtain a little more time to obtain a consultant's report, there should have been some evidence as to how long that was likely to take.
65. Finally, I would add this. Stress and anxiety are generic terms. Mr John Cavanagh QC, who has appeared for the appellant, has not suggested that stress and anxiety cannot constitute an illness. However, as I see it those terms are likely to cover a range of symptoms differing widely in their severity. Where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity, and so on, or to explain why those details cannot be supplied to the Tribunal. When a party applies for an adjournment he must bear in mind the need for complaints to employment tribunals in these sorts of matters to be heard promptly, the need to consider the interest of other parties to the proceedings and the need to avoid unnecessary waste of tribunal time and scarce resources.
66. MR JUSTICE CRESSWELL: When exercising appropriate case management every court or tribunal has (among other powers) a discretion whether to refuse or to grant an adjournment. It is important to emphasise again that the exercise of such discretion is one with which an appellate body will be slow to interfere and can only interfere on the limited grounds identified in the judgments of Peter Gibson LJ and Arden LJ, in Teinaz v London Borough of Wandsworth (unreported) 16th July 2002.
67. I agree that the appeal in the present case should be allowed for the reasons given by Peter Gibson and Arden LJJ.
Order: Appeal allowed. Detailed assessment of the Respondent's publicly funded costs. Application for permission to appeal to the House of Lords refused.