Appeal No. UKEAT/0186/12/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
7 September 2012
Before
HIS
HONOUR JUDGE DAVID RICHARDSON
DR K MOHANTY JP
MISS S M WILSON CBE
MR
Z IQBAL APPELLANT
(1)
METROPOLITAN POLICE SERVICE
(2) METROPOLITAN POLICE
AUTHORITY RESPONDENTS
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Postponement or stay
The Tribunal wrongly refused an application for postponement on
medical grounds:
(1) It did not have regard to medical evidence, to which the
Claimant referred it and which existed within the hearing bundle, confirming
that he had been diagnosed with depression, given counselling and treated with
anti-depressant medication,
(2) It did not apply guidance given in Teinaz v London Borough of Wandsworth [2002] ICR 1471; in the circumstances
it should have adjourned for a short period to enable the Claimant to seek
medical advice.
HIS HONOUR JUDGE DAVID
RICHARDSON
Introduction
1.
This is an appeal by Mr Zaffar Iqbal, (“the Claimant”), against a judgment
of the Employment Tribunal sitting in Watford (Employment Judge Manley
presiding) dated 7 September 2011. The judgment records decisions
made by the Tribunal at a hearing on 31 August 2011. The Tribunal refused
the Claimant’s application for a postponement on health grounds; consequent
upon that refusal, the Claimant withdrew the claims he was making, and the
Tribunal dismissed them.
2.
The principal question on this appeal is whether the Tribunal erred in
law in refusing the application for an adjournment. If the Tribunal erred in
law, it is not disputed that the Claimant’s withdrawal consequent upon that
refusal is of no effect and that the claims should not have been dismissed.
The background facts
3.
The Claimant was employed by the Metropolitan Police Authority as a
police community support officer (PCSO) with effect from 16 August 2007.
Soon after his appointment he began to apply for posts within technical
branches of the Metropolitan Police, believing that his skills and ambition lay
in the area of electronics and technology. His case is that he was rejected
for such posts without justification and that his treatment was on grounds
prohibited by discrimination legislation. His case is brought both against the
Metropolitan Police Authority, as it was then known, and against the
Metropolitan Police Service; we shall refer to them together as the
Respondents.
4.
In about November 2009 the Claimant began to develop lower-back
pain with sciatica. By January 2010 he was unable to carry out normal
patrol duties due to his back problem. He had time off work, and when he was
at work he required light duties. Occupational health records described
considerable pain and discomfort for which he took medication. There came a
time when it was proposed to relocate him from the place where he undertook his
light duties. He stated a grievance about the proposed transfer; it did not
take place. He last worked in January 2011.
5.
It is relevant to note that an occupational health medical report dated
17 March 2011 recorded that the Claimant was being seen by a
specialist, remained functionally restricted in the lower back and was now on
antidepressants because his GP felt that he was showing signs of depression.
He was considered unfit for normal duties but fit for an office role, initially
on part‑time hours. He was described as having “ongoing psychological
problems”, and it was said that “medical input into his psychological condition
is continuing”.
The Tribunal hearing
6.
There were three claims before the Tribunal. The first two claims
related to rejection of the Claimant’s applications for various posts; the
claims were claims of direct discrimination on the grounds of race, religion
and age. The third claim related to the proposal to relocate the Claimant; it
was brought on grounds of direct sex discrimination, direct disability
discrimination and disability‑related discrimination. The first two
claims were the subject of a Pre‑Hearing Review and case management discussion
in November 2010. The claims were then listed for eight days between 30 August
and 8 September.
7.
In the weeks running up to the hearing the Claimant sought witness
orders and disclosure. On 23 August he applied for an adjournment on the
grounds that he needed further information. The application was refused on
26 August, renewed, and refused again. The Claimant did not apply for an
adjournment on the grounds of ill‑health.
8.
On 30 August he attended the Tribunal. It was agreed that the
Tribunal would spend the day pre‑reading the substantial case papers,
including the witness statements. It was further agreed that the case would
begin on the second day with the cross‑examination of the Claimant. On
that day the Respondent’s counsel told the Claimant that if his claims were
unsuccessful, she would seek costs on the basis that his claims were
misconceived. She mentioned the matter in open Tribunal, saying that the costs
would be some £30,000 but no application would be made if the Claimant withdrew
before live evidence started. The Employment Judge explained the issue about
the costs to the Claimant. The Claimant said, according to the Employment
Judge’s note, that he was depressed, required a walking stick and had a blue
badge. It is clear that he mentioned his back condition, for he had been
unable to bring the case papers, which ran to some four volumes, to the
hearing. Arrangements were made for him to have a car‑parking space, and
he was told that the papers could be brought for him from his car to the
Tribunal room. The Claimant did not make an application for an adjournment.
9.
On 31 August, however, the Claimant, after arriving late – he said,
by reason of traffic conditions – did apply for an adjournment. The Employment
Tribunal’s reasons describe the application as primarily made on health
grounds. The Employment Judge’s notes refer to “medical situation, depression,
sleeping disorder. Complicated health problems”. Later it is noted, “not sure
medically fit. Thinking ability might be impaired. Can’t represent myself”.
In answer to questions from the Employment Judge, he said that he had consulted
doctors about depression but had no medical evidence. The Employment Judge
noted him saying, “today I’m feeling very bad, very low. 24 hours only slept 2
hrs, seeing Dr, psychologist one charity, MPS counselling”. He said he was on
medication but could not recall precisely what. At this point, according to
the Employment Judge’s note, the Claimant said he thought the occupational health
report referred to antidepressants. This, in our judgment, is plainly a
reference to an occupational health report in the bundle, the report dated
17 March 2011 to which we have already referred.
10.
The Tribunal, after deliberating, refused the application. The
Employment Judge assured the Claimant that the Tribunal would give him every assistance
with questioning and with regular breaks, and that the clerks would help with
documents. The Claimant protested that it would be a miscarriage of justice if
an adjournment were not allowed. He was told the Tribunal had already decided
the matter. After a short interval the Claimant said that he wished to
withdraw his claims. He repeated his concerns about his health. The
Employment Judge asked him if he was withdrawing; “Yes or no?” He said that he
was withdrawing on medical grounds. The Respondent did not make an application
for costs.
11.
Following the hearing the Claimant applied for a review drawing
attention to the occupational health report; but the Employment Judge
considered the matter to be closed, the Claimant having withdrawn and the claim
having been dismissed.
The Tribunal’s reasons
12.
The Tribunal, after setting out what had transpired up to and including
the application for a postponement, directed itself that in deciding whether to
grant a postponement it had to balance the needs of both parties, take account
of the overriding objective set out in Regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure)
Regulations 2004 and consider prejudice to each party in granting or
not granting the postponement. The Tribunal expressed its conclusions in the
following terms:
“6. The tribunal adjourned to consider the application and
decided that it was not in the interests of justice to postpone the hearing for
a number of reasons. We took into account that the claimant had not mentioned
his ill health last week or yesterday, that he had produced no medical evidence
and that he had driven to the tribunal and had answered all the questions put
to him without any apparent difficulty. The respondents and the employment
tribunal are funded through the public purse which has already been put to
considerable expense including the tribunal sitting yesterday and reading all
the statements and documents. A hearing of this length could not be fitted in
by this office until mid 2012 making it almost three years from the claimant’s
first alleged incident of discrimination. We have to balance the interests of
all parties in dealing with these cases justly and fairly. Though he clearly
does not agree, we are not convinced that it is in the interests of the
claimant himself to postpone this matter which has been listed for many months
and has involved work for him, for the tribunal administration and judges as
well as the respondents. In any event, having carefully considered the
arguments from both parties and matters in the round, on balance we take the
view that the case should proceed to be heard.”
Submissions
13.
On behalf of the Claimant, Ms Laura Prince submits that the
Tribunal did not have regard to the Claimant’s overriding Article 6 right
to a fair hearing, nor did it have regard to the approach set out in leading
authorities, in particular Teinaz v London Borough of
Wandsworth [2002] IRLR 721 at paragraph 20‑22 and 39
and Andreou v Lord Chancellor’s Department [2002] IRLR 728. At the very least the Tribunal should have granted a short
adjournment for the Claimant to seek medical evidence from his GP (see
paragraphs 21 and 39 of Teinaz). The Tribunal
ought to have considered whether the Claimant’s application was genuine, and it
ought to have had regard to the evidence in the bundle supporting his case that
he was being treated by his GP for depression and prescribed antidepressants.
The factor that the Tribunal took into account, the failure to mention his
health the previous day, was wrongly taken into account; the Claimant had
mentioned his health the previous day.
14.
On behalf for the Respondent, Ms Robin White submits that the
Tribunal sufficiently directed itself to the law by stating and applying the
overriding objective. No reference to Teinaz, Andreou
or any other case was required. She submits that the reference in Teinaz
to a short adjournment to obtain medical evidence did not apply to a case such
as this, where there was nothing to suggest that the Claimant was unfit to
attend. She submits that the Tribunal did not leave out any relevant
consideration or take into account any irrelevant consideration. She submits
that the Tribunal must have proceeded on the basis that the Claimant’s
condition was a genuine one but decided that given the assistance that the
Tribunal could offer to the Claimant it was just and fair for the case to go
ahead. She submits that, having regard to the Claimant’s presenting condition
to the Tribunal and having regard to the history of the Tribunal proceedings to
date, the Tribunal was justified in taking that view.
Discussion and conclusions
15.
Applications during a hearing by a party representing himself or herself
for an adjournment on the grounds of ill-health are among the most difficult
interim applications Employment Tribunals are called on to deal with,
especially where the application is on the grounds of stress or depression.
Such applications arise at short notice; often the evidence is unsatisfactory.
The natural instinct of a Tribunal, applying the overriding objective, will be
to proceed with the hearing. Representing oneself before a Tribunal is
inherently likely to be a stressful experience. It is hardly surprising if a
litigant representing himself feels very nervous and inadequate, particularly
at the start of the hearing. However, Tribunals are used to making allowances
for such matters. The hearing process is methodical and structured, and
experience shows that after initial stage-fright many litigants find that their
nerves subside and that they cope with the inevitably challenging task of
representing themselves. It would not be in their own interests if Tribunals
were too ready to grant adjournments; sooner or later, if they are to represent
themselves, they will have to cope with the challenge.
16.
Sometimes initial discussion with a litigant, giving reassurance and
encouragement of the kind that we have mentioned, establishes agreement that
the best course is to proceed; but if the application is persisted in, the
Tribunal must address it. At this point the guidance in Teinaz
and Andreou is of great value. We agree with Ms White that
it is not an error of law in itself for the Tribunal to fail to refer to these
cases in its reasons, although we must say that in our experience most
Tribunals do make express reference. The key question is whether the Tribunal
has approached the question with the correct principles in mind. In this case
it is sufficient to quote two passages from Teinaz. In
paragraphs 21‑22 Peter Gibson LJ said:
“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.”
17.
Moreover, Arden LJ said:
“39. I agree with Peter Gibson LJ that applications
for adjournment may raise difficult problems requiring practical solution. 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. I am not, of course, saying that that course
would necessarily have assisted in this case, but it may be helpful to advocates
and tribunals to bear this point in mind in a future case.”
18.
As Teinaz shows, if there is medical evidence that the
party is not fit to participate in the hearing, an adjournment will generally
have to be granted whatever the inconvenience to other parties. Often,
however, there is no direct evidence that the party is not fit to participate
in the hearing; it will be his or her say‑so. The Tribunal will then
have a difficult decision to make: is it right to allow a short adjournment of
the kind that is suggested in Teinaz for medical evidence to be
obtained?
19.
When a Tribunal makes that decision it is highly material to bring into
account any information there is concerning the health of the person in
question. If the person says that he is stressed but there is no significant
history of depression or stress or treatment for it, the Tribunal may more
easily reach the conclusion that fairness does not require any investigation of
the medical position.
20.
If, however, there is a significant history of depression or stress
requiring medical treatment, the Tribunal will be more circumspect. A general
practitioner with notes available to him may be well placed to give a view on
the litigant’s ability to cope. It will often be appropriate to apply the guidance
in Teinaz by adjourning the case to enable the Claimant to make
an urgent appointment to see the practice that is treating him. The Tribunal
is entitled to ask the litigant to take with him a short letter drafted by the
Tribunal explaining the assistance that the Tribunal can give to litigants in
person and explaining what assistance and opinion it is that is required from
the medical practitioner. Of course, time is limited, and the medical
practitioner’s opinion will inevitably be a short one, but in a case such as
this it may be of critical importance to the fairness of a decision that the
Tribunal makes.
21.
In this case it is a striking feature of the Tribunal’s reasons in
paragraph 6 that it did not refer to the evidence in the occupational
health report confirming that the Claimant was suffering from depression, being
treated by antidepressants and had ongoing psychological problems. It is
impossible to see from paragraph 6 of the Tribunal’s reasons how it
evaluated what the Claimant said to it. The Claimant may have been regarded by
the Tribunal as genuine, or it may have discounted, wholly or in part, what he
said; it is impossible to be sure.
22.
It is also a striking feature of paragraph 6 that the Tribunal
makes no reference to the possibility of a short adjournment for obtaining
medical opinion of some kind. This is a key feature of the Teinaz
guidance. The Tribunal was not required to refer to Teinaz, but
in our judgment it was required to consider the possibility of a short
adjournment. Indeed, in this case, if the Tribunal had appreciated and fully
taken into account that the Claimant was being treated by his general
practitioner, prescribed antidepressants and had been given counselling, we
think it was bound to conclude that a short adjournment was required in the
interests of fairness. We think it was an error of law and unfair to proceed
with the hearing without it.
23.
It follows from what we have said that, in our judgment, this appeal
must be allowed.
24.
We mention two final matters in conclusion. Firstly, in preparation for
this appeal, the Claimant, with the assistance of his pro bono representatives,
obtained a medical report from his doctor dated 8 August 2012. There
is an application to admit that medical report; it is said on the Claimant’s
behalf that it is relevant to the appeal because it shows what would have
transpired if there had been a short adjournment to enable the Claimant to
obtain medical evidence. The introduction of the report is opposed by
Ms White, who points out, correctly, that the Appeal Tribunal’s order made
provision for such a report but the report has been supplied long after the
time allowed for it and that there has been very limited time for the
Respondents to reply to it. We have reached our conclusions without taking
into account anything in that report. It seems to us that the case turns on
the Tribunal’s failure to grant the short adjournment required for the
obtaining of a report.
25.
We should also say that it was submitted to us that one reason why the
Claimant was under such stress on 31 August was that when he arrived on
30 August there had been express reference to a substantial application
for costs before the Tribunal. We need express no opinion as to whether that
is the case. We would say, however, that particularly where a litigant is in
person and there is a history of medical problems including depression there is
no obligation upon a Tribunal at the start of a hearing to give any consideration
to submissions about a possible future application for costs. If a respondent
wishes to give a costs warning to a litigant in person it can be done long
before the hearing. The start of the hearing is a particularly sensitive and
difficult time for a possible future application for substantial costs to be
raised; we think that discussion of such a matter in open Tribunal at that
point, particularly where a Claimant is representing himself and has a history
of depression, is usually best avoided.
26.
It follows that the appeal will be allowed. The dismissal of the claims
will be set aside. It will be declared that the withdrawal of the claims is of
no effect, and the matter will be remitted for consideration by a freshly
constituted Tribunal. In the first instance there should be a CMD, not least
since we understand that there is a further claim to be considered.
