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

	APPEARANCES

For the Appellant	MS LAURA PRINCE
(of Counsel)
Bar Pro Bono Unit
	
For the Respondents	MS ROBIN WHITE
(of Counsel)
Instructed by:
Weightmans LLP
6 New Street Square
New Fetter Lane
London
EC4A 3BF	

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.