Appeal No. EAT/0777/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 November 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MISS A MACKIE OBE
MR D NORMAN

DR Y R TEINAZ	APPELLANT

WANDSWORTH BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR F EDWARD JUNIOR
Non-Practising Barrister
Instructed by:
Cain & Abel Law Firm
239 Missenden
Inville Road
London
SE17 2HX	
For the Respondent	MR J SWIFT
(Of Counsel)
Instructed by:
Wandsworth Borough Council
Administration Department
The Town Hall
Wandsworth High Street
London
SW18 2PU	

MR JUSTICE LINDSAY (PRESIDENT)

1.	We have before us as a full hearing the appeal of Dr Y R Teinaz in the matter Teinaz v The London Borough of Wandsworth.  To distinguish it from another case of a similar description this is EAT/0777/00 and in it Dr Teinaz appeals against the decision at London South on the subject of an adjournment, which was sought on medical grounds, being refused.

2.	Mr Fred Edward Junior today appears for Dr Teinaz and Mr Swift for the London Borough of Wandsworth.  We will need to look at part of the chronology in greater detail shortly but begin by looking merely at an outline.  One begins with the 8 June 1999 when Dr Teinaz lodged an IT1 for racial discrimination and unfair dismissal, the unfair dismissal being said to be of the constructive dismissal variety.  He had been employed, he said, from September 1995 to 31 March 1999.  On 28 July 1999 Wandsworth put in an IT3 and they specifically asked that there should be a determination by the Employment Tribunal of what events could properly be complained of as actionable complaints, as opposed to being merely matters of background, in Dr Teinaz’s IT1.

3.	On 19 October 1999 a hearing was fixed for 7 June.  So one notices that very ample notice was given of the date fixed for the hearing.  On 7 June 2000 the hearing at the Employment Tribunal began.  An application was made by Dr Teinaz’s representative (then, as today, Mr Fred Edward Junior) for an adjournment and it was refused.  It is the period shortly before and shortly after that hearing that we will have to return to in more detail a little later but, continuing in general outline with the chronology, on 19 June the decision of the Employment Tribunal was sent to the parties.  It was the decision of a Tribunal sitting under the chairmanship of Mr A M Snelson at London South and it was unanimous and said:

“The application on behalf of the Applicant to postponement [sic] the hearing is refused.

The application on behalf of the Applicant for a review of the decision refusing the postponement is refused.

All claims brought by the Applicant fail and are accordingly dismissed.”

4.	On 23 June Dr Teinaz requested a review of that decision of 19 June.  On 23 June also a Notice of Appeal was received at the Employment Appeal Tribunal appealing against the decision of the 19 June.  On 8 August 2000 an affidavit was sworn by Mr Fred Edward Junior as Dr Teinaz’s representative as to the alleged events surrounding the application for an adjournment.
 
5.	On 2 November all 3 members of the Employment Tribunal who had heard the matter on 7th June considered the application for a review.  On 21 November Extended Reasons were given by the Employment Tribunal for refusing the review.  The decision says that it was unanimous and that the Applicant’s application for a review of the decision of the Tribunal sent to the parties on 19 June was dismissed.

6.	On 25 January 2001 at the Preliminary Hearing at the Employment Appeal Tribunal the grounds set out in the Notice of Appeal (save one which was then ground 5) were permitted to come forward to a full hearing and Chairman’s notes were required to be obtained or to be requested.  That is the chronology in outline but, as the refusal of the adjournment is at the very centre of the Appellant’s appeal, we now turn to the chronology relating to that in more detail. It would seem to be as follows, that on 25 May 2000 Mr Fred Edward Junior sought to obtain the Respondent’s consent to an adjournment of the hearing which had been fixed since 19 October 1999 to come on on 7 June 2000.

7.	The request was presumably by telephone and was put on medical grounds.  Mr Edward said that his client had been advised to stay away from work and from the Employment Tribunal.  On 26 May Mr Edward indicated to Wandsworth that there may be an application to adjourn the hearing.  On 30 May Wandsworth’s solicitor indicated to Mr Edward that any application for an adjournment would be opposed.  On 31 May Dr Gyselinck wrote a note that reads as follows:

“MUTUELLES EUROPEENNES DE MEDECINE
			______________
                                         LONDON
                                         ______________

						Docteur GYSELINCK
31.05.2000

To whom it may concern

I have advised today Doctor YUNES TEINAZ, to keep away from work for two weeks from today, due to severe stress.

For the same reason I have also advised Doctor TEINAZ not to attend court next week.”

And an address is given for the French Medical Centre at 25 Wimpole Street, London W1M 7DAD.

8.	It is to be noted that it does not mention that Dr Gyselinck had examined Dr Teinaz or when he had, if he had.  It has to be said that “severe stress” is somewhat vague.  It gives no prognosis.  It does nothing to suggest that severe stress might not recur as and when, after an adjournment, the hearing loomed once again.  It says nothing about irregular heart beat or hypertension or as to a swollen leg or legs. On the same day, the 31 May, Mr Edward gave notice to Wandsworth that he would be seeking an adjournment.  On 1 June Mr Edward wrote to the Employment Tribunal seeking an adjournment.  He said:

“We have been instructed that the Applicant in the forthcoming case is ill and has been advised by his doctor to take time off work including attending any Court hearing on ill-health [grounds] for the next fourteen days commencing from 31st May 2000.

We understand that the Applicant had been advised about a week ago to take a break from work and all other stress related tasks as a result of being under severe stress but had tried to soldier on.  This appeared to have now aggravated his illness.

For about a week we had put the Respondents on notice of our likely intention to seek an adjournment of this hearing upon a medical advice and certificate.

In the circumstances, we therefore request an adjournment of the hearing that had earlier been scheduled to commence on 7 June 2000.

Please find a medical certificate that has been forwarded to us. (That is a reference to the Gyselinck Note and it concluded) 

We apologise for any inconvenience that this might have caused the Tribunal.  We trust that the Tribunal will agree that the Applicant’s health takes priority and cannot be put at risk.”

And so the Gyselinck note was sent. 	

9.	On 2 June the Respondent indicated to the Employment Tribunal that the adjournment would be opposed and on the same day, 2 June, a Chairman considered the application that had been made for an adjournment and refused it in writing saying:

““The Chairman has considered all you say and has balanced that against the desirability of bringing this case to a hearing without delay.  Your request for a postponement is refused for the following reason:

There are a number of uncertainties about the Applicant’s position and difficult issues of justice and principle for the Tribunal to decide.  The application to postpone will therefore have to be dealt with by the full Tribunal on 7th June 2000.  The party should be ready to proceed to call evidence if necessary””
It might be said that that letter should perhaps have triggered the thought on the Applicant’s side that better medical evidence would be necessary or desirable to be presented on 7 June but it is equally fair to say that it does not in term say that that is the case.

10.	On 5 June Dr Teinaz launched a second IT1. That suggested that he was fit at any rate enough to give instructions and also on 5 June Mr Fred Edward Junior wrote to Wandsworth’s solicitors indicating that he would apply for an adjournment at the hearing and mentioning the new IT1.  He said:

““In the circumstances we are of the view that it may be appropriate to delay the exchange of witness statements until 7th June 2000.  So as the new complaint may be incorporated into a single witness statement as the two cases may have to be heard together.”” 

11.	On 7 June the hearing began.  Dr Teinaz was represented by Mr Edward and the Tribunal said this in their paragraph 22:

“The Applicant did not attend the hearing and Mr Edward appeared before us alone.  The Respondents attended and were ready for the case to proceed.  Mr Edward told us that he was instructed solely for the purpose of renewing the application to postpone.  His instructions were that the Applicant was unfit to attend the Tribunal, even for the limited purpose of substantiating his grounds for seeking a postponement.  The application was rested firmly on the medical note, although Mr Edward did also argue that the hearing should in any event be postponed to enable it to b consolidated with the new complaint of victimisation.  (In making and persisting with this subsidiary argument Mr Edward recognised that a likely effect of such consolidation would be a very considerable delay in the disposal of the litigation since the fresh complaint (consisting of an allegation of post-employment victimisation) faced a jurisdictional obstacle which, short of the Court of Appeal, appeared very hard to overcome: see Adekeye v Post Office (No 2) [1997] IRLR 105, CA.)”  

A little later, still in paragraph 22 the Employment Tribunal continued:

“He (that is Mr Edward) assured us that his client was as anxious as the Respondents to see an end to the litigation as soon as possible.  He strongly denied the suggestion made by Mr Lewis Brooke in correspondence [that was Wandsworth’s solicitor] that the Applicant’s case had not been properly prepared and that this was the true reason for the Application to postpone.  He told us that his witness statements had been prepared by 25th May.  He said that the Applicant’s was signed and dated and those of his two supporting witnesses were in draft.  When asked to produce them he told us that he had not brought them with him as he was only instructed for the purpose of making the application to postpone.  We enquired why, at least after 30th May, he had failed to exchange witness statements.  His reply was that in the light of the instructions to investigate a possible claim for victimisation, re-drafting might become necessary (presumably only of the Applicant’s statements) to incorporate the new allegation.  Finally Mr Edward referred us to a passage in Harvey on Industrial Relations in Employment Law where some familiar propositions concerning the exercise of our discretion to postpone are set out.”

12.	The adjournment was opposed.  The Tribunal says in paragraph 23:

“Mr Swift (appearing, then as now, for Wandsworth) opposed the application.  He made a series of points in support of his main argument that there was no credible evidence to demonstrate that the Applicant was so unwell as to be unable to attend the Tribunal.  He further drew our attention to the prejudice to the Respondents which a postponement was likely to entail.”

And we see from the Chairman’s notes that some telling points were made. Noting the submissions made by Mr Swift the notes say:

“Discretion for Tribunal

First Q: is there credible evidence A so unwell as to be unable to give evidence and instructions?

Must balance interest of Rs.
It is a matter of [importance] to R and R’s witnesses.

Freshness of memory is important.  Some allegations go much further back than March 99.  Postponement will probably go to next year.”

13.	The Employment Tribunal then turned to 12 separate matters which in aggregate conduced to their decision to refuse the adjournment and they concluded in their paragraph 25:

“Balancing all the relevant factors we have reached the clear view that the discretion to postpone which the Applicant invokes should not be exercised.  At the heart of this conclusion is our opinion that the medical ground on which the application is based rests on evidence which is utterly inadequate.”

14.	Some very telling points had been made by the Tribunal amongst the 12 particular considerations which they set out.  Thus, for example, in their 24(2) they say:

“Mr Edward’s assertion in the course of argument that he received information indirectly on 22nd May that the Applicant was unwell does not advance the case at all.  The Applicant was at work for more than a week after that date.”

And also in their sub (3) they say:

“The third hand statement made by Mr Edward on 25th May that the Applicant had been advised not to attend work or a Tribunal for two weeks also helps very little.  This statement is not substantiated and the doctor concerned is not even identified.  The Applicant attended work for the best part of a week thereafter and there is nothing to suggest that he had any difficulty in doing so.  If a doctor did give the advice as alleged, the subsequent attendance at work suggests that the advice was based on a misjudgment of the Applicant’s condition.  If the doctor did not give the advice, the Applicant’s credibility is gravely undermined.”

15.	It is also a matter of some curiosity that the advice sent by Mr Edward to have been received on 25 May anticipates very closely the language of the Gyselinck’s letter that did not emerge until the 31st.

16.	Next the Tribunal say this in their paragraph 24(4):

“This brings us to the medical note of 31st May.  We observe that there is nothing to confirm that Dr Gyselinck knows the Applicant or has ever treated him before.  Mr Edward stated rather tentatively that he believed that the French Medical Centre were the Applicant’s general practitioners.  We doubt whether Mr Edward is correct on that point.  One would expect a GP to use the standard form sick certificate or to write a full report.  Dr Gyselinck did neither.  The note relied upon contains no history (not even of recent events such as the alleged consultation of 25th May (or thereabouts) and the advice said to have been given on that occasion), no clear diagnosis (we are not told how, if at all, the Applicant health is said to have been affected by the stress he allegedly complains of), no suggestion that the Applicant’s condition has necessitated any form of treatment, such as the prescription of medication, and no prognosis.

It is significant that no suggestion is made to the effect that the Applicant has ever before suffered from stress-related illness or any form of psychological or psychiatric condition.”

And then in 24(6) the Tribunal says:

“Following the refusal of the postponement application by the Chairman on 2nd June, the Applicant has failed in any way to strengthen or amplify the medical evidence on which he relies.  This causes us to doubt whether his condition truly justifies being excused from the Tribunal hearing.”

17.	One ground of the 12 ( and I call it “sub (7)”) says this:

“The Applicant has chosen not to attend the Tribunal in order to substantiate his contention that he is not fit to attend throughout a full hearing.  His absence reinforces our suspicion.”

We will have to return to that “sub (7)”.  The Tribunal notice a number of things in (9), (10), (11) and (12).  They talk about prejudice to the Respondents, to the possibility of memories fading, of delay itself being inimical to justice, that the proceedings involved serious allegations which threatened the standing and reputations of individuals.  They anticipated logistical problems in connection with re-listing the case and they go on to say in their (12):

“Against these considerations stands the hard fact that the refusal of the postponement would, in all probability, result in the case being determined without the participation of the Applicant.  The chances of a successful outcome would thereby be drastically reduced.  We proceed on the basis that this claim is made in good faith and may have merit.”

And as we have mentioned earlier they then say:

“Balancing all the relevant factors we have reached the clear view that the discretion to postpone which the Applicant invokes should not be exercised.”

18.	Mr Edward, as we have mentioned earlier, has sworn an affidavit on the subject.  He says that:

“The Appellant who of an Arab origin and a client of the firm I represent was seriously ill  About 31 May 2000, suffering from Irregular heart-beat (hypertension) and swollen in both legs.”

It will be remembered that Dr Gyselinck said nothing about those features.
And Mr Edward says:

“Having being informed by myself that the Appellant was gravely ill and since the Chairman was of the view that the medical note accompanying the application was not detailed enough in giving the Appellant’s exact illness, the Tribunal should have allowed for a short adjournment, as the very least of the first day, for a more detailed medical report in the interest of justice especially as this case had no history of any previous adjournment.”

19.	Against that the Chairman who was asked to give his comments says:

“In paragraph 3 of his Affidavit Mr Edward states that his client was seriously ill on 31 May, “suffering from irregular heart-beat (hypertension) and swollen in both legs.”  I have re-read my notes of the hearing of 7 June.  These confirm my recollection that in his submissions to us Mr Edward did not in any way seek to expand upon the medical information contained in the doctor’s note of 31 May, which merely stated the Applicant was experiencing “severe stress”.  Mr Edward told us only that his client was ill, (not seriously ill or gravely ill).  (He contrasts that with the paragraph from Mr Edward’s affidavit and continuing) and that his illness consisted of stress.”

20.	As to the possibility needing to be considered, as Mr Edward’s affidavit suggested, that least the first day of being abandoned and adjourned the Chairman says:

“Two points need to be made.  First there was no question of us having made up our minds before the argument was concluded and I reject the suggestion that anything was said or done to convey that impression.  It is, however, right to say that Mr Edward seemed to us to treat the application to postpone rather as a formality, and we were therefore at pains to point out to him that the burden was on him to satisfy us on adequate evidence that the application should be granted.  Secondly, the idea of a short adjournment was never raised before us.  Mr Edward made it very plain that he rested his application on the medical note of 31 May and was content to do so.”

21.	 Dr Teinaz has a ground of appeal that asserts that the Tribunal procedurally misconducted itself.  That is ground 3 in particular and in the course of that ground 3 he says:

“They should have delayed the start of the hearing at the very least by a day in a scheduled 7-day hearing to enable the Appellant to provide a further and detailed medical report.  Especially when at lunch time of the first day having being urged by the Chairman to call the Appellant to come and appear at the hearing the Appellant through his legal representative told the Tribunal that he has been in contact with his doctor and they have his authority to contact his doctor as to his medical condition.”

But that does not seem to square with what is otherwise said, namely that the decision not to adjourn was taken before lunch and the advice by the Chairman to Mr Edward to call his client was on the question of getting instructions.  In paragraph 26 the Tribunal says:

“We announced our decision on the postponement application at about 12.30pm.  We then adjourned to 2.00pm to enable Mr Edward to contact the Applicant and take instructions.”

It was not therefore a message that Mr Edward was to call the Appellant to come and appear at the hearing.

22.	However, what has troubled us in this matter is that passage which I earlier called “sub (7)”:

“The Applicant has chosen not to attend the Tribunal in order to substantiate his contention that he is not fit to attend throughout a full hearing.  His absence reinforces our suspicion.”

There does not seem to be any evidence that Dr Teinaz had simply chosen not to attend.  Rather the position was that his doctor had advised him not to.  It has not been suggested then or since that Dr Gyselinck is not an appropriately qualified medical practitioner.  Nor can it be reasonably expected of a person who receives advice on medical grounds not to attend the hearing that he should then attend to prove his state of health.  He had been advised by, on the face of things, an appropriately qualified practitioner that he should not attend at the Tribunal.

23.	Whilst the Employment Tribunal undoubtedly has a very broad discretion in relation to questions such as an adjournment it is a discretion that has, of course, to be judicially exercised and a classic way of indicating that there has been error of law in the exercise of a discretion is to show that amongst the factors taken into account is a matter that should not have been taken into account.

24.	Here it seems to us that sub (7) is an unjustified matter to have been taken into account.  It was not a proper consideration that could have been taken into the balance by the Employment Tribunal.  It will be remembered that in paragraph 25 the Tribunal says: “Balancing all the relevant factors we have reached the clear view” which they then described.  It cannot therefore be said that sub (7) played no part in the decision or that the decision would plainly have been exactly the same even had sub (7) been deleted or not taken into account.  

25.	Taking the view that we do of sub (7), it seems to us we have no option but to set aside the decision not to adjourn.  Mr Swift accepts that if, as has proved to be the case, we are against him on the adjournment issue, then the decision that the Tribunal went ahead to make on the merits has also to be set aside; particularly, no doubt, Mr Swift would have had in mind that if the adjournment was improper then Article 6 would only strengthen the case for the merits decision arrived at in Dr Teinaz’s absence being set aside.  

26.	We accordingly set aside the decision not to adjourn and set aside also the decision on the merits of the case.  We therefore must remit the matter to be considered afresh by the Employment Tribunal.  In the particular circumstances we think it would be better that the matter should be remitted to a different Tribunal, if only because re-constituting exactly the same Tribunal is more likely to delay matters than to serve any useful purpose.