United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0043/12/SM

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

 

 

At the Tribunal

On 25 May 2012

Judgment handed down on 13 June 2012

 

Before

THE HONOURABLE MR JUSTICE WILKIE

(SITTING ALONE)

 

 

 

 

MISS T RILEY APPELLANT

 

 

 

 

 

 

THE CROWN PROSECUTION SERVICE RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR J GALBRAITH-MARTEN (of Counsel) Instructed by: Leigh Day & Co Solicitors Priory House 25 St John’s Lane London EC1M 4LB
For the Respondent	MR J COHEN (of Counsel) Instructed by: Messrs Simons Muirhead & Burton Solicitors 8-9 Frith Street London W1D 3JB

 

SUMMARY

PRACTICE AND PROCEDURE – Striking-out/dismissal

 

The Employment Judge did not err, whether as a matter of law or as a matter of the exercise of his case management powers, in the circumstances and on the medical evidence, in striking out this claim, pursuant to Rule 18(7)(f) of the ET Rules 2004, on the ground that it was no longer possible to have a fair trial in these proceedings.

 

 

 

 

THE HONOURABLE MR JUSTICE WILKIE

Introduction

1.               This is Tyica Riley’s appeal against a decision of the Employment Tribunal (London South) on 11 May 2011 which struck out her claims against the CPS pursuant to Rule 18(7)(f) of the Employment Tribunal Rules of Procedure 2004 on the grounds that it is no longer possible to have a fair trial in these proceedings, and, following on from that, refused her application to postpone the proceedings.

 

Chronology

2.               The Appellant’s employment with the Respondent began on 4 January 2004.  On 17 May 2007 she raised a grievance against the CPS her employer, alleging bullying and harassment by a fellow employee which was upheld in part.

 

3.               In November 2007 she was transferred to the Lewisham team.

 

4.               On 12 August 2008 she went off sick.  She never went back to work and was still sick by the date of the Tribunal’s hearing on 11 May 2011.

 

5.               On 10 September 2008 the Claimant raised a grievance naming two CPS employees other than the one the subject of the May 2007 grievance.  A Ms Sandie Hebblethwaite was appointed to hear her grievance on 5 December 2008.

 

6.               On 10 December 2008 the first Occupational Health report was in place.  The Claimant was not currently fit to return to work but management action was recommended to address her concerns.

 

7.               On 10 June 2009 the second grievance, against the 2 fellow employees, was not upheld. Ms Hebblethwaite suggested that the allegations were false and made maliciously.  Arising out of that, on the 19 June 2009, the Claimant was invited to a disciplinary hearing for making false allegations.

 

8.               On 20 August 2009 there was a second Occupational Health report.  The Claimant was not fit to return to work or attend the disciplinary process which was described as “maybe a significant contributing stressor to Ms Riley and that the removal of this stressor will significantly improve her ill health”.

 

9.               In August 2009 the Claimant’s appeal in respect of the conclusion of her first grievance was rejected.

 

10.            On 16 September 2009 the first ET proceedings were commenced (Number 2328438/09). The claims made started in December 2007, in respect of alleged race discrimination, and September 2008, in respect of alleged disability discrimination and whistle blowing.

 

11.            On 1 October 2009 there was a further Occupational Health report.  The Claimant was not expected to make a recovery any time soon. She wanted her original grievance re-investigated and that was the only possible solution.

 

12.            On 16 October 2009 an ET3 was served in relation to the first ET proceedings.

 

13.            On 23 December 2009 the CPS employee’s appeal against the finding against him in respect of the Claimant’s first grievance was allowed and on the 17 February 2010 the Claimant’s appeal against the rejection of her second grievance was initially rejected. It was again rejected on the 23 March 2010.

 

14.            On 21 April 2010 the second ET proceedings were commenced (Number 2318383/10). This arose out of the re-employment of the CPS employee the subject of the first grievance.  The Claimant raised allegations of bullying by him during the period May – August 2006.  The CPS’s ET3 in that case was filed on the 21 May 2010.

 

15.            On 28 May 2010 the Claimant informed the Respondent she was not fit to attend the disciplinary hearing scheduled for 9 June.  On 9 July 2010 a psychiatric report was prepared by Dr Naguib. That report said the Claimant was “unable to cope or attend any legal proceedings or hearings”.  It was difficult to comment on prognosis but Dr Naguib opined that the Claimant’s problems were “a direct result of her on going legal battle”.

 

16.            On 19 July 2010 the Claimant’s disciplinary hearing commenced.  She was represented on that occasion but, on 3 August, she informed the Respondent that she was not in a position to provide a written submission due to her ill health.

 

17.            On 6 August 2010, at a case management discussion relating to the first two ET proceedings, the case was listed for a hearing of 20 days beginning the 3 May 2011.

 

18.            On 20 August 2010 a further Occupational Health report found that the Claimant was not fit to return to work or attend a disciplinary hearing.  Her condition would not change in the foreseeable future.

 

19.            On 29 August 2010 there was an addendum psychiatric report from Dr Naguib and, on the 13 September 2010, a note from her GP said the Claimant was not fit to attend the disciplinary hearing.

 

20.            On 14 September 2010 the Claimant was summarily dismissed for misconduct namely making false allegations.

 

21.            On 13 December 2010 a third ET case was commenced (Number 2355610/10).  The claims made in those proceedings arose out of the rejection of her grievance appeal and her summary dismissal.  The Respondent responded to that claim on the 25 January 2011.

 

22.            On 15 March 2011 there was a case management discussion in respect of the three ET claims.

 

23.            On 12 April 2011 an internal appeal against the Claimant’s dismissal was rejected.

 

24.            On 26 April 2011 there was a report from Dr Aileen Alleyne to the effect that the Claimant was not in any fit state to attend the ET hearing on 3 May 2011.

 

25.            On 27 April 2011 a fourth ET claim was launched (No 2350404/11). That claim complained about the rejection of the Claimant’s appeal against dismissal.

 

26.            On the same date, 27 April 2011, there was a second report from Dr Naguib who said “She is mentally and physically unfit at the present time to attend the court hearing on the 3^rd May”.  An application was made by the Claimant to adjourn the hearing.  That application was put over to be considered on the 3 May 2011, the first listed day for the 20 day hearing.  Thus the 3 May hearing was listed as a case management discussion/hearing to consider the Claimant’s application to postpone the full merits hearing.  The start of the full merits hearing was postponed till the 4 May.

 

27.            On 3 May the Claimant renewed her application for postponement on the grounds of her state of health.  This was opposed by the Respondent.  The Employment Judge, on 3 May, postponed further consideration of the matter until the 11 May when there would be consideration whether her claims should be struck out, amongst other grounds, on the ground that it was no longer possible to have a fair hearing, pursuant to Rule 18(7)(f) of the Rules.  At that hearing the EJ would also consider the Claimant’s application for a postponement of the merits hearing.  The EJ also directed that Dr Naguib should attend the hearing on the 11 May to give evidence.

 

28.            On 11 May Dr Naguib was in attendance.  In addition, there was a medical report from the Respondent’s expert, Dr Wise, completed on the 8 May based on an assessment of the Claimant conducted on the 6 May.  Dr Wise was also in attendance at the Tribunal on the 11 May.

 

The Medical Evidence

29.            Dr Naguib in his report of 6 May was asked “Can you say with any certainty whether Ms Riley is likely to recover in the next 3 months?”. He responded “It is difficult to predict with certainty, but I can say there is a possibility that Miss Riley is likely to recover in the next 3 months …as I am not involved in treating Miss Riley’s depression it is difficult to predict a response to medication and therapy with certainty”.

 

30.            He was also asked: “If not, can you say with any certainty when Miss Riley is likely to recover?”  His response was “… There are different ways of treating depression and Miss Riley should be referred to see a psychiatrist in her local psychiatric hospital.  This is to review her current treatment and possibly to increase the dose of the anti-depressant or to try another form of anti-depressant”.

 

31.            Dr Wise’s report of 8 May also contained his response to a number of questions and read, in so far as is relevant, as follows:

 

“Is Miss Riley now well enough to conduct a trial starting on or after the 12^th May 2011, if not why not?

71. In respect of question 4, she is not well enough to conduct the trial starting on or after the 12^th May 2011 by reason of her severe depression without psychotic symptoms.

You are referred to the following paragraph in Dr Naguib’s … report of 27^th April 2011...

“It remains my opinion that Miss Riley’s current clinical depression is secondary to the alleged harassment and discrimination at work. Miss Riley’s depression is disabling her from moving on with her plan and she feels stuck until justice happens.’

The CPS considers that even if this trial is postponed there is a real prospect that Miss Riley will find herself in exactly the same situation of incapacity on the next occasion because her depression is reactive to a situation which cannot be resolved until she participates in her trial.

a. Do you agree with the quotation from Dr Naguib’s report and the CPS’s view expressed as above?

b. Are you able to provide any firm prognosis for the Claimant so as to be able to identify a date upon which she is likely to be ready to commence a trial, or is it your view that she is unlikely to recover her capacity to recover until after such a trial?

72. In respect of 5a, I can agree that Miss Riley’s depression is disabling her from moving on with her plans and that she feels stuck until justice happens.

73. In respect of 5b, I can provide a further prognosis in so far as there is good research data using normal clinical patients where the STAR* D protocol was followed.

74. In this protocol about 70% of patients had a remission of their illness by the time the fourth tier of the protocol was completed. In the NHS setting I would expect it to take about 6 months to move between tiers on the protocol although this could be reduced to as little as 3 months in an assertively managed service or in a private setting. It would thus take between 12 – 24 months to reach the fourth tier.

75. While Ms Riley has had weekly psychotherapy for a prolonged period I am uncertain of the modality and it is quite clear from a variety of studies with her level of depression, psychotherapy is an inappropriate intervention in terms of recovery.

76. The primary steps would be to try a separate anti-depressant and then augment that with further treatment, namely other anti-depressants. She may well require the intervention of community psychiatric nurses and visits at home with a rehabilitation programme. There is about a 37% probability of remission by the end of the first tier rising to about 70% by the end of the fourth tier with a smaller proportion of patients improving after each tier.

77. However, the presence of PTSD in the past and the presence of ongoing psychosocial stressors namely financially issues and the on going litigation would suggest that the probabilities are less than those stated above.

78. As litigation is a major stressor it may well be the case that recovery is unlikely until after there is a solution in one manner or another.”

 

32.            In the note of his oral evidence at the Tribunal, Dr Wise is recorded as saying as follows: “Don’t think hits balance of probabilities at a year, might be as high as balance of probabilities at two years but range extends far more below.  STAR*D data talks about 70% at fourth tier.  If litigation is ongoing will reduce below that.  Because of PTSD other factors will also be below that. Some questions emerging as to whether 70% is overall optimistic in any event but not digested yet”

 

33.            When counsel for the Respondent asked him to explain what he meant by “the range extending far below”, he said:

 

“Upper part of range, it’s the balance of probabilities most of the range is below”

 

34.            Dr Naguib in oral evidence about the two year point said as follows:

 

“percentage probability at that point question depends on how she is going to respond. Approach was more and more assertive. The significant probability is very difficult to give a percentage. Not in disagreement with his (Dr Wise) opinion. Bases his figures on researches and trials would not elevate room for improvement into probability”

 

The Employment Judge’s decision

35.            The Employment Judge, between paragraphs 12-24, summarised the contentions of the parties and the medical evidence.  In particular, at paragraph 23 he summarises the answers of Dr Wise in his report to which I have referred.  At paragraph 24 he said as follows:

 

“Both experts agreed that litigation was a significant stress and that the determination of the litigation would be a step in the possible recovery of the claimant. The difficulty I am faced with, what Mr Cohen described as the chicken and an egg situation, is that the Claimant is not fit to attend the hearing to achieve determination of finality of the litigation and accordingly she will continue to be affected by the stress or worry associated with litigation which, until it is resolved one way or another, will not form part of the process towards her recovery. Dr Wise’s view, that the Claimants probability of entering remission is less than the 70% probability of achieving remission, when looking at clinical population was not essentially challenged.”

 

36.            His conclusions on the issues of fact was expressed in paragraph 25 in the following terms:

 

“In my judgment, on the basis of the totality of the medical evidence the Claimant will not be fit enough to attend the hearing in 12 months, and on the balance of probabilities, not before the expiry of 2 years, having regard to the severity of her condition and Dr Wise’s opinion that she falls outside the statistical bases of a conclusion 70% of the public would achieve recovery by the end of the fourth tier of the STAR*D protocol.”

 

37.            Against the background of those findings of fact, the Employment Judge then considered what he was to do.  The earliest 20 day slot was some 7 months or more away. The Employment Judge rejected the contention, made on behalf of the Claimant, that he should adjourn the case until then, but give directions in the form of unless orders, which might result in the claim being struck out.  The Employment Judge rejected that approach as a contrivance.

 

38.            He also rejected the Respondent’s suggestion that he should simply refuse the requested postponement and, on that basis, dismiss the claim as having been abandoned. The Employment Judge rejected that because of the medical evidence that the Claimant was not in a position to give instructions to those advising her.

 

39.            It seemed to him that he had to take a view and reach a conclusion as to whether a fair trial was possible.

 

40.            The Employment Judge then set out a serious of contentions made by the Respondent as to why a fair trial was not achievable in the circumstances of the case.  Those contentions may be briefly described as:

(a)                The mounting costs,

(b)                The dimming of recollections of the Respondent’s witnesses, which the Employment Judge thought had some substance,

(c)                The worry and stresses of the Respondent’s witnesses, which, to some extent, the Employment Judge thought had merit.

(d)                The fact that some witnesses had left the Respondent’s employment, which the Employment Judge did not regard as presenting an insuperable difficulty.

 

41.            In paragraph 30 the Employment Judge described “the remaining matter as”:

 

“the absence of any definite prognosis in relation to the Claimant which I have already dealt with,  and in my judgment the Claimant on the balance of probabilities will not be fit enough to attend a Tribunal hearing in the foreseeable future which in my judgment would involve of no more than 18 months at the outside.”

 

42.            The Employment Judge then referred to the Court of Appeal’s guidance in respect of the issues of postponements in Andreou v The Lord Chancellors Department [2002] IRLR 128.

 

43.            The Employment Judge reached his conclusions in the following paragraphs:

“34. I accept the submission of Miss Chute that in exercising its balancing exercise the ET has a very wide discretion. However, in my judgment, having taken all the matters into consideration, particularly the medical evidence, the Respondent will suffer further prejudice if this case is further delayed for a significant period. I have taken into account the prejudice to the claimant if the case is struck out and not having her case heard but sadly this is one of those cases where the weight of the medical evidence on the balance of probabilities does not provide an optimistic prognosis of when, if ever, the Claimant will be in a position to be well enough to take part in the proceedings.

35. Having taken into account all the factors and balanced the prejudice to the claimant and the prejudice to the respondent, in my judgment, on the basis of the medical evidence, a fair trial is regrettably not possible in the foreseeable future.”

 

44.            In those circumstances he struck the case out.

 

An issue of law

45.            Both Claimant and Respondent are agreed that an issue of law may arise in this case namely; the appropriate approach of the EAT when asked to adjudicate upon the correctness of a case management decision, to strike out a claim, or to refuse a postponement, where the necessary consequence of such a refusal is to bring the claim to an end.

 

46.            The parties are agreed that there are two approaches which appear to have found favour with the Court of Appeal in different decisions in different contexts.  One is that that such a case management decision is a matter for the ET’s discretion from which the Appellate Tribunal may only intervene on grounds of “Wednesbury unreasonableness” or perversity.  The other is that where such a decision is made it concerns the fairness of the proceedings and, as such, requires the appellate body to decide whether the ET’s decision was the right one, an issue of law.

 

47.            The former approach appears to have been adopted by the Court of Appeal in Teinaz v London Borough Wandsworth [2002] IRLR 721 [2002] EWCA Civ 1040, at paragraph 20 and 21.  However, in that case, it was said that a request for an adjournment by a litigant, whose presence was needed for a fair trial but who was unable to attend through no fault of his, would usually have to be granted.  A failure to do so would fall to be quashed on grounds that the ET had failed to have regard to a relevant matter, namely, the right to a fair trial under Article 6 of the ECHR.

 

48.            A similar approach was identified in Andreou v Lord Chancellor’s Department [2002] IRLR 728, where Lord Justice Peter Gibson said that, in relation to an appellate court intervening with a decision of an ET to refuse an adjournment, the approach was to see whether the Tribunal was perverse or otherwise plainly wrong in refusing it (para 46).

 

49.            The second approach is said to be that, where such a decision directly affects the “fairness” or otherwise of a hearing, the matter is not one for the discretion of the ET, subject to being overturned only on Wednesbury grounds, but requires the ET to reach the right conclusion, as a matter of law, on fairness, the ET having found the facts within the framework of which its decision on fairness has to be taken.

 

50.            This line of authorities starts with Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 [2006] 1 AER 731) at paragraph 6 and 7 of Lord Hope’s speech. That case concerned an allegation of apparent bias in the make up of the tribunal in question. The question whether a tribunal was properly constituted or was acting in breach of the principles of natural justice was a question of law to which there could only be one correct answer.

 

51.            This approach appears to have been followed in Terluk v Berezovsky [2010] EWCA Civ 1345.  The issue in that case was whether the litigation should be tried by a Judge alone or Judge and jury. In that case the question of “fairness” was, by reference to Gillies, said to be one that required a correct application of the legal test to the decided facts.  Lord Justice Sedley, in paragraph 19, said “What the appellate court is concerned with is what was fair in the circumstances identified and evaluated by the judge.”  In paragraph 20, however, he seemed to suggest that there may be more than one “fair” decision.

 

52.            In Osborn & Booth v The Parole Board [2010] EWCA Civ 1409, which concerned the refusal by the Parole Board to grant oral hearings, Lord Justice Carnwath, at paragraphs 39-42, adopted a view which made a distinction between the decision maker’s consideration of the “general situation,” reviewable only on “Wednesbury” grounds, and the judgment of the Court, on the basis of that assessment, on what fairness requires, which would require the Court’s decision to be correct was a matter of law and would, accordingly, require the appellate court to decide the correctness of that decision and form its own view of what was fair.  The other members of the Court of Appeal were Lord Justice Moses and Lord Justice Sedley. Lord Justice Moses concluded that the approach of the Court to the issues of fairness in the procedure of a lower Tribunal is not a “Wednesbury” test but is a matter of primary judgment (para 53) and Lord Justice Sedley, reminding himself of what he had said in Terluk v Berezovsky, said as follows:

“58. Thus, the recognition that fairness is a question of law has two implications which may be in tension with one and other. It means first and foremost that whether a step or decision was unfair is an appellate question, nor a review question, and so is not to be approached by simply asking whether it went outside a broad band of discretion. In fact I question whether discretion is the correct word for most such decisions. They are or ought to be exercises of judgment.

59. Secondly, however many such decisions turn on facts which it was for the Tribunal to ascertain and to evaluate. If and insofar as such findings are recorded by the lower tribunal they will be the basis on which the appellate court gauges the fairness of what the Tribunal decided to do…”

 

53.            Those appellate authorities tend to suggest that where “fairness” directly engages a potential denial of an Article 6 right to a fair trial, the approach of an appellate court should be to regard the question of fairness as a question of law and not a question of discretion for the lower Tribunal, though the findings of fact on the basis of which both the lower court and, in turn, the appellate body have to decide upon fairness is, ultimately, a matter for the lower Court.

 

54.            In a series of EAT decisions decided this year, different panels of the EAT have identified this potential, apparent, disconnect between two lines of appellate authority. In O’Cathail v Transport for London UKEAT/0247/11 the EAT, presided over by His Honour Judge David Richardson reflects this uncertainty.  He appears to conclude that the starting point must be that the law requires a fair hearing and the question whether a Tribunal has met that fundamental requirement is a question of law.  He appears to conclude that where a decision to grant or refuse an adjournment imperils the fairness of the proceedings, as a whole, the Appeal Tribunal must look for itself to see whether the effect of the decision has been to deny a fair hearing.  However, at paragraph 37, he also refers to the fact that Lord Justice Sedley in Terluk had said there may be more than one fair solution to a difficulty. The question is whether the decision is a fair solution, not whether it is the fair solution.

 

55.            In Pye v Queen Mary University of London UKEAT/0374/11, and in Osonnaya v South West Essex PCT UKEAT/0629/11/SM, the President of the EAT, Mr Justice Langstaff, also grappled with this apparent confusion in authority. Although it may not have been necessary in either case for the President to identify which approach he was adopting, he seems to be more prepared to adopt the approach that the question whether, in taking a decision to strike a case out or refuse a postponement with the consequence that the case would end, a Tribunal had met the fundamental minimum requirement of fairness, was a question of law which the appellate Tribunal had to decide.

 

56.            In my judgment the decision of this Employment Judge, to strike out the claim and, as a consequence, to refuse the application for a postponement, directly affected the fairness of the proceedings so as to bring Article 6 into play. This is not a case where a single case management decision did not on its own directly affect a fair hearing, but might only do so having regard to the way the hearing had been conducted as a whole.  On the contrary, the direct effect of this decision was to prevent the claim continuing and had the effect of denying the Claimant any hearing of her important claims.  Accordingly I approach this matter on the basis that, if it were decisive I would follow the line of authority which requires the appellate body to decide whether the decision was the fair one rather than focussing on whether there is a “Wednesbury” reason to intervene.

 

57.            However, as appears below, in my judgment, it does not matter which is the correct approach because in either event the outcome is the same.

 

Submissions and conclusions

58.            Mr Galbraith-Marten has made two points. The first is that the Employment Judge erred in law and/or had regard to an irrelevant matter by artificially identifying, without any reasoning to support it, a period of eighteen months from the date of the hearing as constituting the “foreseeable future,” within which the Claimant would, on the balance of probabilities, have to be fit to attend the hearing.  Accordingly it is said, that, in paragraph 35, when he came to the judgment that, on the basis of the medical evidence a fair trial was not possible in the foreseeable future, he was referring to the foreseeable future as limited to a period of no more than 18 months.

 

59.            Mr Galbraith-Marten says that there is no reasoning in the Tribunal decision to demonstrate why a period of 18 months should be taken as the limit of the “foreseeable future” and that, by anchoring his reasoning to that unsupported assertion, the Employment Judge had regard to an irrelevant matter and/or failed, as a matter of law, properly to identify whether or not a fair hearing was no longer possible.

 

60.            Mr Cohen has not sought to defend this apparent approach of the EJ. He argues, however, that the EJ was not in error in approaching the question of strike out by reference to whether the Claimant would, on the balance of probabilities, be able to attend and participate in the hearing of her claims within the foreseeable future, and that if she were not the fair decision, in the factual context, would be to strike her claim out under rule 18(7)(f).  He says that the fixing of a period of eighteen months is not central to that exercise because, on the EJ’s findings about the medical evidence, she was not, on the balance of probabilities going to be fit enough to participate in the hearing of her claims within the foreseeable future. On that basis, he says, the fair decision was to strike the claims out.

 

61.            In my judgment there is a degree of force in the narrow argument of Mr Galbraith-Marten. Indeed Mr Cohen, by implication, has conceded as much. The Employment Judge identified eighteen months as the limit of the “foreseeable future” without any explicit reasoning to support it. Accordingly, on that basis, and regardless of the approach I should adopt as required by the conflicting decisions of the Court of Appeal and above, I would regard that as constituting an error of law on the part of the Employment Judge. This is not so much because eighteen months might not be an appropriate measure of what was the foreseeable future in the circumstances of the case, but because his conclusion that it was is unsupported by any reasoning.

 

62.            In my judgment, however, the EJ did not err in approaching the question of strike out by considering what the medical evidence demonstrated, on the balance of probabilities, was the prospect of the Claimant being well enough to participate in the hearing of her claims within the foreseeable future.

 

63.            Mr Galbraith-Marten contends that the medical evidence does not support the conclusion that as of the 11 May 2011 it was no longer possible on that basis to have a fair hearing. He says that the Employment Judge over stated the effect of the medical evidence when he concluded at paragraph 25 that “on the balance of probabilities the Claimant will not be fit enough to attend a hearing before the expiry of 2 years”

 

64.            Mr Cohen, on the other hand, says that the Employment Judge did not overstate the effect of the medical evidence and was entitled to conclude as he did at paragraph 34, having taken all the matters into consideration particularly the medical evidence, when he concluded that “this is one of those cases where the weight of the medical evidence on the balance of probabilities does not provide an optimistic prognosis of when, if ever, the Claimant will be in a position to be well enough to take part in the proceedings” and, in paragraph 35, where he said:

 

“In my judgment on the basis of medical evidence a fair trial is regrettably not possible in the foreseeable future.”

 

65.            In my judgment, it is important to have regard to the chronology. The Claimant had been off sick from work since August 2008. This absence from work was linked to her grievances as early as December 2008. By August 2009 the Occupational Health report was recording that the then disciplinary investigation and the appeal process may be a significant and contributing stressor to the Claimant whose removal would significantly improve her ill health.  Dr Naguib’s first psychiatric report in July 2010, in terms of commenting on progress, said that her problems were a direct result of her ongoing legal battle.

 

66.            In that context Dr Wise’s report and in particular paragraphs 72, 76, 77 and 78 are highly significant. The conclusion of Dr Wise as to whether he was able to provide any firm prognosis as to when the Claimant was likely to be ready to commence a trial or whether she was unlikely ever to recover her capacity until after such a trial, was recorded, in paragraph 78, when he said, “Litigation is a major stressor. It may well be the case that recovery is unlikely until after there is a resolution in one manner or another”.

 

67.            In my judgment, as the EJ concluded, that did give rise to a “chicken and egg” situation in which, on the balance of probabilities, the stress and depression which made the Claimant unfit to attend the hearing was caused to a significant degree by the conflicts at work and the claims she was making in the Employment Tribunal so that it was unlikely that she ever would be fit enough to conduct a Tribunal proceedings or give instructions to enable them to be conducted, as that litigation itself was a significant cause of that disabling illness.

 

68.            In those circumstances, in my judgment, regardless of the unfortunate fixing of the “foreseeable future” by reference to a period of eighteen months, by the 11 May 2011, and in the context of the longevity and intensity of the depressive illness and its causes, the fair decision for all concerned, including the Respondent, was to conclude that a fair hearing was no longer possible.  That was the decision to which the EJ came and is the decision to which I have come on the basis of the EJ’s findings as to the circumstances, including the import of the medical evidence

 

69.            It follows, therefore, that, in my judgment, the decisions of the Employment Judge to strike out the claim and to refuse the postponement of its hearing were not wrong in law, whether as a matter of the exercise of his case management discretion, or as a question of law, in the factual circumstances and in the light of the medical evidence upon which the Employment Judge had to act.

 

70.            Accordingly, this appeal is dismissed.