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Appeal No. UKEAT/0094/10/SM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 June 2010

Before

THE HONOURABLE MRS JUSTICE SLADE

MR I EZEKIEL

MR A HARRIS

MR J ASIM (APPELLANT)

(1) UNIVERSITY HOSPITAL BIRMINGHAM NHS FOUNDATION TRUST

(2) MISS J MOORE (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant MR MARK RICHARDS (Representative)

For the Respondents MR TARIQ SADIQ (of Counsel)
Instructed by:
Messrs Bevan Brittan LLP Solicitors
Interchange Place
151-165 Edmund Street
Birmingham
B3 2TA

PRACTICE AND PROCEDURE

Absence of party

New evidence on appeal

An Employment Tribunal dismissed the Appellant's claim. He had failed to attend the hearing before it and an application made on his behalf for an adjournment because of lack of representation and on medical grounds was refused. Fresh evidence, a doctor's letter obtained after the refusal of an adjournment, was admitted by the Employment Appeal Tribunal. The letter contained advice given by the doctor to the Appellant the day before the hearing that for medical reasons he was unfit to represent himself. Applying Teinaz v London Borough of Wandsworth [2002] IRLR 721, if the Employment Tribunal had seen the doctor's letter it would have granted the adjournment.

Appeal allowed. Decision to dismiss the Claimant's claim set aside. Claim remitted to an Employment Tribunal for hearing.

1. This is an appeal by Mr Asim from the decision of an Employment Tribunal sitting in Birmingham on 23 April 2009, entered in the register on 8 May 2009, which refused his application to adjourn the substantive hearing of his claim for race discrimination. Having considered the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 rule 27(5) and (6) on the Appellant's failure to attend or be represented for the purpose of conducting the case and in all the circumstances and on information supplied by the parties, the Employment Tribunal dismissed the Appellant's claim for race discrimination.

1. It was not necessary for the purpose of this appeal to set out the facts in any detail; we merely set out a brief summary. The Appellant was a medical laboratory assistant employed by the First Respondent, having commenced employment on 10 October 2003. He presented an ET1 on 24 October 2008 claiming race discrimination against the First Respondent and an individual, the Second Respondent, asserting discrimination in relation to a reference supplied by the Second Respondent, who is an employee of the First Respondent. The reference was supplied to a hospital which the Appellant asserts had offered him a job subject to satisfactory reference. That job offer was withdrawn in November 2007.

1. The Appellant asserts that the job offer was withdrawn because of the poor reference provided by the Second Respondent. He asserts that the poor reference was an act of race discrimination. He also claims race discrimination in relation to what he contends is an inadequate investigation of his grievance of race discrimination arising from the supply of the reference. His claim was listed for hearing on 23 April 2009 for two days. The Respondents were represented by counsel and solicitor. The Claimant did not attend and had no representative. However a gentleman attended to apply for an adjournment and to explain the Appellant's non-attendance. The gentleman was the manager of the Birmingham TUC Centre for the unemployed.

1. The basis for the application for the adjournment was twofold. First of all it was that the Claimant was not represented and, secondly, that the Claimant was ill and could not attend. So far as the non-representation is concerned, it was said that the advocate who was planned to attend to represent the Claimant, was double-booked had contacted the Employment Tribunal to inform the Tribunal of her difficulty. So far as the illness is concerned, the Employment Tribunal did not have any written evidence before it to indicate the illness from which the Claimant was suffering and no assessment of his inability to attend the hearing. The application for an adjournment was opposed by Mr Sadiq who represented the Respondents before the Tribunal, as he has before us.

1. The reasons given for the representative not being able to attend are not material to this appeal. The Tribunal accepted that the representative was double-booked and they considered that the Claimant, Appellant before us, was, to a large extent, to blame because he chose not to contact a representative until very late in the day. So far as illness is concerned, it was submitted by Mr Sadiq, perhaps not surprisingly, that there was reason to be suspicious about the reliance on illness as a ground for the application for an adjournment. The word 'convenient' was used by him and taken up by the Employment Tribunal. They considered that there was some force in the submission that the application on ground of illness was somewhat suspicious and convenient in light of the fact that there was no material evidence placed before them of that illness.

1. There was an application on 19 May 2009 for a review of the Tribunal's decision. That application for a review was made on two bases. First, the lack of representation was referred to again and, secondly, so far as medical evidence is concerned, it was said that there was medical evidence in support of that application. There was reference to the fact that the Appellant had spoken to his doctor on 21 April 2009. It was said:

"We understand that the doctor gave the Claimant a further sick note but did not write a letter specifically stating that the Claimant was in no state to represent himself."

The application for a review was refused.

1. On appeal before us Mr Richards, on behalf of the Appellant, applied for the admission of fresh evidence before this Employment Appeal Tribunal. That fresh evidence was two items of written evidence. One was an affidavit of a Mr Andrew Lee, dated by him 27 October 2009, and the other was a letter from a Dr Bryson, dated 12 May 2009.

1. Mr Sadiq opposed the admission of such evidence. We deal briefly with the evidence in the affidavit of Mr Lee. Mr Lee wrote in his capacity as a volunteer co-ordinator for BRADICAL (the Birmingham Race Discrimination Case Work Agency, Birmingham TUC Centre for the unemployed, Birmingham Law Centre and the Birmingham Citizens Advice Bureau). The content and substance of that affidavit is to explain the difficulties facing a Claimant, and this particular Claimant, in seeking representation. There is no explanation in that affidavit for the extreme delay in its production and as to why such evidence could not have been produced before the Employment Tribunal on 23 April 2009, let alone at a date earlier than October 2009.

1. The affidavit clearly does not satisfy the first test in Ladd v Marshall [1954] 1 WLR 1489 which governs our decision as to whether to admit fresh evidence (see Employment Appeal Tribunal Practice Direction 8.2). Accordingly, we refused the application for admission of Mr Lee's affidavit.

1. We turn now to the medical evidence, the letter from Dr Bryson dated 12 May 2009. In that letter, which is addressed to Mr Nannestad at the Birmingham TUC Centre for the unemployed, Dr Bryson set out a brief history based on the Appellant's medical records and that the Appellant had presented with health symptoms relating to his work as early as July 2007. These became more pronounced and he required time off work from November 2007. Indeed, the Appellant had been off work for health reasons since that date.

1. Dr Bryson's letter of 12 May 2009 records that he saw the Appellant on 22 April 2009. He states that he was of the opinion that:

"His mood was low and he was clearly suffering symptoms of stress".

Further that:

"It was my judgment on 22 April 2009 that on account of his significant distress, his anxiety and his low mood he was not in a position to represent himself at the Tribunal without a representative.

I specifically advised Mr Asim on 22 April 2009 that he did not need an additional sick note in relation to the Tribunal hearing on account of the fact that he was already signed as being unfit for work on account of stress symptoms. I also stated that I would be happy to supply a medical report should this be formally requested as is the normal procedure."

1. Mr Sadiq very fairly and properly concedes that the doctor's letter is apparently credible, that it is relevant to the application for an adjournment and that it would be likely to have an important influence and was likely to be determinative of such an application. Mr Sadiq's opposition to the admission of that evidence concentrated on the contention that that evidence could have been obtained with reasonable diligence for use at the Employment Tribunal hearing. That was a submission directed at the first matter referred to in paragraph 8.2.1 in the EAT Practice Direction and relevant for the purpose of the application of Ladd v Marshall and to having regard to the overriding objective.

1. Mr Sadiq contends that any reasonable complainant, and any reasonable person appearing to assist a Claimant, applying for an adjournment would have obtained the medical evidence which is now sought to be adduced before us. He contends that there is no evidence that the Employment Tribunal was informed on 23 April 2009 that the Appellant had seen a doctor on the previous day and had been given the advice which is now contained in the letter from the doctor.

1. Although that submission was broken down in three and then in two parts, in effect it amounts to the contention which we have outlined, that a reasonable applicant for an adjournment in the Appellant's situation would have obtained the evidence which is now sought to be adduced before us. Moreover, Mr Sadiq points out that there is no affidavit evidence from the person who attended the hearing on 23 April 2009 to ask for the adjournment setting out what he says occurred and what he says he told the Tribunal as to Mr Asim's medical condition and that he had seen a doctor on the previous day.

1. It is clear to us, as it is to those appearing before us that it is overwhelmingly likely that had they seen the medical evidence on 23 April 2009, which is now sought to be adduced before us, the Employment Tribunal would have granted the application for the adjournment. In considering the application to admit the doctor's letter of 12 May 2009 before us, and applying the threefold test set out in paragraph 8.2 of the EAT Practice Direction, applying Ladd v Marshall and having regard to the overriding objective, in our judgment it is plain that the letter is apparently credible, it is relevant and would probably have had an important influence and in these circumstances a determinative influence on the decision of the Employment Tribunal.

1. In our judgment the contention that the evidence could have been obtained with reasonable diligence for use at the Employment Tribunal hearing would have had considerable weight had it not been for the terms in which the doctor's letter of 12 May 2009 is expressed. It is plain from the terms of that letter, and in particular:

"I specifically advised Mr Asim on 22 April 2009 that he did not need an additional sick note in relation to the Tribunal hearing on account of the fact that he was already signed as being unfit for work on account of stress symptoms. I also stated that I would be happy to supply a medical report should this be formally requested as is the normal procedure"

that the meeting with the doctor on 22 April 2009 the Appellant discussed the question of a document to produce before the Tribunal. It is likely that Mr Asim on that day asked for some document or some written evidence to produce to the Tribunal in support of his application for the adjournment.

1. In light of the fact that it seems the doctor advised Mr Asim that he did not need an additional sick note but that he would be happy to supply a medical report should this be formally requested as is the normal procedure, it was understandable why the evidence, which is now sought to be placed before us was not obtained by Mr Asim and placed before the Employment Tribunal by the person helping Mr Asim. Accordingly, we admit the fresh evidence of the letter of 12 May 2009 from Dr Bryson.

1. On the basis of the medical evidence that the Appellant was not, or had been, advised by his doctor that he was not in a position to represent himself at the Tribunal without a representative, Mr Richards for the Appellant relies on Teinaz v London Borough of Wandsworth [2002] IRLR 721 to contend that we should set aside the refusal of the adjournment and consequential dismissal of the claim. Mr Sadiq submits that the case before us is distinguishable from Teinaz. In Teinaz the Employment Tribunal, refusing an application for an adjournment had before them medical evidence which they found not to be credible, whereas in this case there was no medical evidence placed before the Employment Tribunal. However, he rightly recognises that paragraphs 21 and 22 of the judgment of the Court of Appeal in Teinaz govern the grant of applications for an adjournment in situations such as this. In paragraph 21 of Teinaz the Court of Appeal held:

"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."

1. In our judgment, having regard to the fact that this Appellant not only had to attend the hearing of his claim but would have had to represent himself at the two-day hearing, on the basis of the doctor's letter of 12 May 2009 which is now before this Employment Appeal Tribunal and applying Teinaz, the Employment Tribunal would have acceded to an application for the adjournment of the hearing of Mr Asim's claim.

1. Accordingly having admitted the letter of 12 May 2009 in evidence we allow this appeal. We have canvassed the consequence of our allowing this appeal with both representatives. We allow the appeal and substitute a decision allowing the adjournment pursuant to our statutory powers to do so. The consequence is that the decision of the Tribunal to dismiss the Appellant's claim is also set aside. The claim is remitted for hearing to an Employment Tribunal. The remitted claim can be heard by the Employment Tribunal which heard the application for an adjournment. However we strongly urge those responsible for listing this case for hearing to take into account the need for a speedy resolution of this matter. Serious claims have been hanging over the Respondents for a considerable period of time.