Appeal No. UKEAT/0074/12/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At
the Tribunal
On
29 May 2012
Before
THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)
MR
E CROCE APPELLANT
CENTREWEST
LONDON (BUSES) LTD & OTHERS RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
After several attempts to agree upon a medical expert to report
upon the day to day effects of Claimant’s alleged disability, C failed to
attend an appointment he had agreed to go to. He claimed he was not well
enough. When ordered to produce evidence of this (eventually by means of an
unless order) he did not do so, and his claim stood struck out. He sought to
appeal the subsequent refusal of his application for relief from sanction. It
was held that the Employment Judge could not be shown to be in error of law.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.
This is an appeal in effect against a decision that the case stood
automatically stuck out on 26 April 2011 in form against the refusal on 1 July
2011 by Judge Mahoney at the Watford Employment Tribunal to allow an
application for relief from sanction.
2.
The Claimant is Italian, he worked as a bus driver, he has very little
English and has made his submissions through an interpreter for whose services
I am very grateful. In addition, a lot of the letters he has written and his
written submissions show difficulty with English and I will give them as
generous an interpretation as I can.
The background
3.
The background to the appeal is this; the Claimant claimed in 2009 that
he suffered from disability within the Disability Discrimination Act.
Although I do not have the ET1 in my papers it appears that the dispute which
gave rise to the claim in particular focused upon whether the Claimant had been
entitled to a key to use the facility’s service disabled toilet.
4.
Whatever the precise scope of the claim, the question of disability was
in dispute. The Claimant apparently suffers from chronic Hepatitis C and from cirrhosis
of the liver. The question is what effect that has on his day to day
activities. To answer that question the Tribunal required to have the evidence
of a medical expert.
5.
In a case management decision made in May 2010 the Tribunal proposed
that a single medical expert should be jointly instructed. On 1 July 2010 the
name of one was agreed but he later withdrew having been approached privately
by the Claimant. In December 2010 further names were advanced by the
Respondent for the Claimant to choose. Since by 11 January 2011 the Claimant
had not accepted any a further case management discussion on 21 January 2011 ordered
that on or before 4 February the Respondent was to identify a consultant
physician who would act as an expert and to arrange an appointment for the
Claimant with that expert.
6.
On 4 February 2011, Dr Glynn was identified as the expert and an
appointment arranged for 25 February. An Italian interpreter was arranged and
the Respondent was to pay. By an email sent in the very early morning just
before 3.00 am on 24 February the Claimant told the Tribunal that he was unable
to attend that appointment. He said, in words which evidence his lack of
English:
“The Claimant are sick and in pain and for the reasons of the
distance relate at the mobility problem of the Claimant and because need make
injection chemotherapy. For this reasons and other reasons the Claimant ask to
the Employment Tribunals to review the order and to make in consideration for
avoid the risk of the health worsering and the life of the Claimant in the
status of stress and depression caused from the disability of the Claimant and
caused from this Employment Tribunal matter.”
7.
In the light of that, employment Judge Heal directed by letter dated 17
March 2011 that the Claimant should provide written evidence to the Tribunal
and to the Respondent from his GP confirming that he was too ill to attend the
appointment on 25 February 2011. That was to be done by 24 March. On 21
March, the Claimant wrote to the Tribunal saying he could not provide that
evidence because he had lost the letter he had from the GP. On 28 March,
employment Judge Heal made an unless order requiring the Claimant to send to
the Respondent and the Tribunal by 7 April 2011 first, medical evidence from
his GP confirming that he was too ill to attend the medical appointment on 25
February and secondly, an explanation why the claim for disability
discrimination should not be struck out because he had failed to attend the
medical appointment. The Claimant was unable to provide the material from the
general practitioner because the general practitioner would only record that
that was what the Claimant said he was too unfit to do and would not himself
certify it.
8.
The claim was thus treated as struck out because of the failure to
comply with the order of Judge Heal and the Claimant sought relief from that
sanction. The Judge, in considering relief from sanction had a choice; he
could grant relief or he could refuse it. A choice such as that must be
exercised judicially with regard to fairness and to justice and in accordance
with relevance and reason. The principles which apply have been clarified by
the Governing Body of St Albans Girls’ School v Neary [2009] EWCA
Civil 1190 and 1214 reported 2010 IRLR 124. The Court of Appeal held in words
very similar to those I have just used that the duty of the Judge is to decide
the case rationally and not capriciously and to make his decision in accordance
with the purpose of the relevant legislation taking all relevant factors or
circumstances into account. He must avoid taking irrelevant factors into
account
9.
Provided the Judge has met those requirements, his judgment should not
be impugned merely because a Court of Appeal would or might have reached a
different conclusion. There may be two correct answers or at least two answers
which are not so incorrect that they can be appealed against. The facts and
circumstances are case sensitive. Judge Mahoney thought that in addition he
should approach the case as suggested in Maresca v Motor Insurance Repair
Research Centre [2004] All England Reports 254. He thought that
approach had been confirmed by the Court of Appeal in Neary. As
a result he went through each of the factors set out in Maresca which derive
from the Civil Rules CPR 3.9. It needs to be said very clearly to Tribunal
judges that this was a misconception on Judge Mahoney’s part. Neary
did not confirm that that approach must be followed. It described it as a
useful checklist but it is not an obligatory requirement before the discretion
can be exercised. It is entirely appropriate for Tribunal judges to deal with
the central issues; they do not have to refer to each and every one of the
factors identified in CPR 3.9.
10.
The judge before whom the case came on the sift considered the appeal
which Mr Croce had advanced. He was asking that the appeal tribunal should in
effect exercise mercy and grant him relief. It might have appeared from what
he said that he had indeed been too ill to attend the medical examination on 25
February and it was apparently suggested to Judge McMullen QC on an oral
application that there was fresh evidence to that effect. The evidence which
it was thought might not have been considered by the judge was a letter which the
Claimant got from his GP, Dr Latif. That certificate is dated 22 February
2011. It identifies the Claimant by name and address and then says that he was
suffering from,
“Hepatitis C under Royal Free Hospital, suffers from back pain.
He says he is unable to attend for his assessment by Public Transport.”
11.
The Judge having been asked by this Tribunal whether he saw that letter
and, if so, did he ask whether it amounted to a good explanation and if not,
why not responded that he had seen the letter, he did consider whether it
constituted a good explanation but considered that it merely recorded what the
Claimant had told his GP and was not evidence that he was unable to attend his
assessment by Public Transport.
12.
It is plain that the Claimant agrees that the letter does not provide
sufficient evidence for he is very concerned about the way in which Dr Latif
has acted. In his submissions he has told me that Dr Latif will have to answer
for his letter elsewhere, that he did not really know why Dr Latif acted as he
did. He thought that the letter indicated that Dr Latif did not wish to see
him, the Claimant, and was responsible for causing him further personal injury and
it is plain that he has a number of complaints about the way Dr Latif failed to
support his position.
13.
This Tribunal cannot make any decisions about the rights and wrongs of
the way that Dr Latif acted. So it would be wrong for me to pass any comment
one way or the other about that. The question for this court is whether the Employment
Judge, given the information which Dr Latif did in fact provide, however badly
it may have been provided, was entitled to come to the conclusion he did. He
could not imagine that the position medically was different from that which Dr Latif
was saying; he would have no basis to do that. Accordingly he was entitled to
conclude that the Claimant had put forward no evidence medically to explain why
he did not attend the appointment with Dr Glynn. Accordingly, the Judge
decided as he did not to give relief from sanction. The only issues which were
permitted to proceed to this hearing by Judge McMullen were as follows in the
words of paragraph 5 of his order of 1 February 2012:
“The appeal is limited to the Claimant’s Counsel’s draft as
follows;
a) This is appeal is brought by the Claimant, Mr Croce, from the
decision of employment Judge Mahoney sitting at Watford, striking out Mr
Croce’s claims. The decision was made without an oral hearing and was sent to
the parties on 26 April 2011. Mr Croce sought relief from that sanction/review
by letter dated 1 May 2011 which made reference to “new evidence” in the form
of a letter from Mr Croce’s GP dated 22 February 2011, three days before the
date fixed for a medical appointment; the subject of a direction from the
Tribunal.
b) As clarified at a Rule 3(1) hearing on 1 February 2011, Mr
Croce’s complaint is that although his failure to attend the appointment was
intentional … that there was a good explanation for that contrary to the
finding of paragraph 38.4. The explanation is he contends, set out in the
letter from his GP dated 22 February 2011.”
14.
It should be noted that this appeal hearing is considering no other issue.
I do not, for instance, have to nor can I in the light of that decision by His
Honour Judge McMullen consider any of the issues which might arise if the case
of Blockbuster v James [2006] IRLR 630 were to be referred to.
That, no doubt, has had appropriate consideration earlier in the appeal history
but anyone reading this decision on appeal must bear that in mind.
15.
Given those as the issues and having read the response of the Judge to
the questions he was asked, having heard from the Claimant and listened to his
complaints that he was let down by his doctor, I have to focus in the light of
those questions on what the Employment Judge did. It has not been shown that
he acted in any error of law applying the test in Neary and
accordingly this appeal must be dismissed. It is only left for me to say once
again how grateful I am for the services of the interpreter who has acted
alongside the Claimant today in helping him make his representations in person.
