Bi v E-Act [2023] EAT 43

Appeals against i) a refusal to set aside an unless order and ii) a refusal to reconsider a decision to dismiss the Claimant's claims after the unless order was not complied with. Cross-appeal relating to jurisdiction of the ET to determine the question of reconsideration. Appeals and cross-appeal dismissed.

The Claimant succeeded (in part) in her claims at the liability stage and directions were given for the trial of remedy, which ultimately led to an unless order being made for the Claimant to provide her consent to the full disclosure of her medical records. When the claims were dismissed for failure to comply with that order, the Claimant applied for the order to be set aside but the application was rejected on 5 November 2019. The Claimant appealed. During the course of the appeal proceedings, the Claimant received a diagnosis of autism which she sought to rely on as potentially explaining her earlier failure to comply with the unless order; the appeal was stayed to allow the claimant to apply out of time for reconsideration of the decision to dismiss her claims. The ET, however, refused the application for reconsideration in August 2021. The Claimant appealed this further decision, additionally arguing that the ET’s failure to hold oral hearings of her applications rendered the procedure unfair. The Respondent resisted the appeals for the reasons provided by the ET and also cross-appealed, contending that, on its face, the Claimant’s application sought a reconsideration of the notice of dismissal; as such: (1) there was no jurisdiction to determine this by way of reconsideration as it was not a “judgment” as defined by rule 1(3)(b) ET Rules 2013, and (2) the ET had wrongly entered the arena by widening the scope of the application to encompass other decisions (including that of November 2019).

The EAT dismissed the appeals and cross-appeal. In circumstances in which neither party had requested an attended hearing, the ET had not erred in considering the set aside application on the papers and there was nothing in the new evidence relating to the claimant’s autism diagnosis to suggest she had thereby been prejudiced or that this was unfair. Equally, in subsequently determining that reconsideration of its earlier decision was not in the interests of justice, the ET did not err in not setting this down for a hearing: it adopted the procedure laid down by rule 72(1) ET Rules 2013 and there was no basis for concluding that it ought to have made an adjustment to this procedure in the light of the claimant’s diagnosis of autism. As for the ET’s substantive reasoning, it had not been perverse for the ET to conclude that full disclosure of the claimant’s medical records did not merely go to the claim for compensation for psychiatric injury but was necessary for the fair trial of remedy in this case as a whole. The ET had also been entitled to conclude that, even if the application to set aside was allowed, the Claimant would still refuse to give her consent. Accepting the strong public interest in ensuring that complainants are properly compensated in respect of public interest detriments and acts of unlawful victimisation, a refusal to disclose relevant medical records might impact on the fair determination of remedy and the ET had been entitled to find this was the position in these proceedings. The ET had taken account of all relevant considerations in determining the interests of justice in respect of both applications in issue, including the partial disclosure that had been made by the Claimant. Moreover, in considering the new evidence relating to the Claimant’s autism diagnosis, the ET had been entitled to find that any explanation thus provided for the Claimant’s failure to comply with the unless order (albeit that explanation was not complete) did not outweigh the impact of that failure on the ability to hold a fair trial of remedy in this case: the interests of justice cannot be viewed from just one perspective. As for the cross-appeal, the ET had not erred in considering the application for reconsideration to relate to its judgment of November 2019; as such the points raised by the respondent fell to be dismissed.

Published: 14/04/2023 09:36

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