The claimant, a bus driver, ran over and killed a person. He was facing a criminal charge of causing death by dangerous driving and the trial date was set for April 2012. The claimant brought claims against the respondent employer, claiming that the way in which they conducted the investigation into the accident constituted direct and indirect disability and race discrimination and a failure to make reasonable adjustments. The question of whether he was relevantly disabled was listed for a pre-hearing in November 2011. The claimant wrote to the Tribunal asking for the hearing to be postponed, saying that he feared that if he had to give evidence at the ET, it might harm his criminal case. The EJ refused it, because the issue to be determined was only that of disability.  Implicitly, he concluded that there was no link between the subject matter of the criminal trial and the question of whether the claimant was or was not disabled, and whether he might or might not be able to substantiate at a Tribunal hearing his claims that he had been discriminated against by reason of disability.  It was on that basis that he refused the adjournment. However, another employment judge agreed that the hearing should be adjourned and it was re-listed for May 2012. The criminal trial was then postponed to June 2012, which was after the ET hearing, and the claimant applied for the employment proceedings to be adjourned. The application was refused and the claimant appealed.

The EAT dismissed the appeal.  The EJ was entitled to refuse postponement since holding a pre-hearing review did not risk any breach of privilege against self incrimination, and it was to consider disability only, and probably did not need the attendance of the claimant personally.

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Appeal No. UKEAT/0233/12/CEA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 23 May 2012

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT) (SITTING ALONE)

MR S FIROUZIAN (APPELLANT)

METROLINE TRAVEL LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
Written Submissions

For the Respondent
MR JONATHAN COHEN (of Counsel)

Instructed by:
Metroline Travel Ltd
c/o HR Department
ComfortDelGro House
329 Edgware Road
London
NW2 6JP

UNFAIR DISMISSAL

The Claimant, a bus driver, accused of causing death by dangerous driving of his bus. Claimed race and disability discrimination in the way employer dealt with this. Due to attend criminal trial.

Employment Judge refused to postpone a hearing at Claimant's request on ground that trial postponed, so preliminary hearing to consider question of disability should be too. Background of (claimed) serious depressive illness. Held that on basis of the material before him, EJ entitled to refuse postponement since holding a PH did not risk any breach of privilege against self incrimination, and it was to consider disability only, and probably did not need the attendance of the Claimant personally.

1. This is an appeal against a decision made on 13 March 2012 when the Employment Judge at Watford rejected an application to postpone a preliminary hearing that had been set for 30 May 2012. The Appellant is not here in person to progress his appeal, nor is he represented. I have heard submissions from Mr Cohen, on behalf of the Respondent. I have to take account of the fact that the Appellant is not represented and do the best I can to give his arguments full force on this appeal despite that. It is said on his behalf that he is not present because he is simply unable to cope at the moment. That comes in the light of a substantially vouched history of stress leading to depression, as to which his general practitioner has certified him as unfit to work for a very lengthy period, in respect of which she and other doctors have certified and written as to his illness and in respect of which the prescription chart from the surgery shows that he has been in the receipt of regular chemical treatment. Accordingly, I shall take it that he is not here because he is today unable to be present to advance his appeal. His representative has asked that I should determine the appeal on written submissions, in his case, and I do so.

1. The appeal is brought on grounds that argue that the Tribunal's failure to postpone the hearing was demonstrably unfair in the light of the latest in that chain of medical evidence. That is a letter dated 23 March 2012 signed by Dr Hayley Dawson, his general practitioner. She says:

"I understand Mr Firouzian has been advised to stand in his tribunal proceedings on 30th May. He has the Criminal Case on 11th June. He is broken by the accusations and the way he has been treated as it is, and expecting him to attend the tribunal less than 2 weeks before the criminal case seems to me to be inhumane. He needs all his strength for the criminal case and, once this has been finalised, will be able to go ahead with the tribunal.

The events of the past 18 months have had a severe impact on Mr Firouzian's mental health, he has severe depression and is most traumatised by the allegations and the way he has been treated. I feel that consideration must be made to his mental health and the importance of maintaining his strength such that he can concentrate on the proceedings of the criminal case. It would seem very unfair to expect him to defend himself in the employment tribunal in the 2 weeks leading up to the criminal case."

1. If the hearing had been a hearing before the Employment Tribunal in order to determine the issues in his claim, requiring evidence from him, lengthy attendance and covering much of the same ground as was likely to be traversed in the criminal case, this letter would compel a decision to postpone the hearing. However, Mr Cohen has pointed out various matters; first, that the decision under appeal is one that was taken before that letter was written.

1. The background is this. The Claimant was employed as a bus driver. It is alleged that on an evening in September 2010 his bus ran over and killed a person. His employer dealt with him under conduct procedures. The way in which the employer did so was argued by the Claimant to give rise to claims in respect of disability discrimination, both direct and indirect and in respect of a failure to make reasonable adjustments, direct and indirect racial discrimination and personal injury. The accident was also investigated by the police. He is currently awaiting a Crown Court trial. That had been due to be heard by now but has for various reasons now been set to be heard in the middle of June this year. He faces a count of causing death by dangerous driving.

1. He claims that he has suffered ill health for some time. That is the basis for his claim to have been disabled at the times relevant to his employment claim. The question of whether he was relevantly disabled was listed by Employment Judge Henry on 25 July 2011 for a half day hearing on 21 November. It was anticipated that there would be medical reports to deal with that issue. The parties agreed that they would obtain a joint medical report. It might well have been anticipated that that report would probably have disposed of any substantial issue that there might have been in respect of disability. In the event, the Claimant has not, for whatever reason, good or bad, co operated in the completion of any such report.

1. In a letter of 8 November 2011 he expressed a fear that if he had to give evidence in an Employment Tribunal, it might harm his criminal case; he wished to avoid self incrimination, or any risk of it. However, the main thrust of the letter was seeking to put off the Tribunal hearing until after the criminal case. He said this:

"I also suffer from depression and I enclose a copy of a recent medical certificate from my GP. I am receiving counseling [sic] and taking medication. This medical condition, combined with the fact that my first language is not English [he is, as I understand it, Iranian], makes it difficult for me to concentrate and to communicate clearly in English especially when I am under stress. I am under a great deal of stress at the moment, particularly with the impending criminal matter."

1. Employment Judge Small considered the request to postpone and refused it, because the issue to be determined was only that of disability. Implicitly, he concluded that there was no link between the subject matter of the criminal trial and the question of whether the Claimant was or was not disabled, and whether he might or might not be able to substantiate at a Tribunal hearing his claims that he had been discriminated against by reason of disability. It was on that basis that he refused the adjournment.

1. HHJ Marron at Blackfriars Crown Court was alerted to the Tribunal hearing. He commented that a decision to insist upon a Tribunal hearing before the criminal trial was heard was bordering on an abuse of process because it anticipated the trial process in a Tribunal, and risked the defendant's right to silence being interfered with. It is plain that he was not alerted to the fact that the hearing which was anticipated was not in respect of the facts of the accident but only in respect of whether the Claimant was or was not disabled.

1. However, Employment Judge Palmer on 21 November 2011, having heard from a Mr Eshghi, as representative for the Claimant, agreed that the Pre Hearing Review should be adjourned and re listed for 30 May 2012. The issues were to be whether at the relevant time the Claimant had a disability; secondly, whether any or all of his claims should be struck out as having no reasonable prospect of success; and thirdly, to the extent that they were not struck out, whether the Claimant should be ordered to pay a deposit not exceeding £500 on the basis that the claims had little reasonable prospect of success. It was anticipated that a full hearing could take place between 20 and 25 August 2012.

1. The application that came before Judge Henry was one made at some stage prior to his decision. I do not have, and have not been supplied with, a copy of the application, but it is apparent from what is said at page 107 in the bundle before me, an email from Thomas Clark, Clerk to the Employment Tribunal, that the basis for the application was that the criminal trial previously listed for 23 April had been re listed for 11 June; that was why postponement was sought. The Judge refused the request. Space is given in the form of order for him to give reasons, but those reasons are absent; he simply states what the result is. Accordingly, I have to consider an appeal against an unreasoned decision made in respect of a case in which a previous Employment Judge had thought it appropriate to adjourn the hearing until after the criminal case had been heard, against a background in which the Claimant has had ill health by reason of depression but in respect of which his principal concern was not to interfere with a right to silence that he might otherwise exercise in a criminal case.

1. The letter of 23 March 2012 was obviously not before the Tribunal Judge making his decision on 12 March; it could not have been. I have to ask whether the Judge's decision made on 13 March displays any error of law. It is the exercise of a discretion. There is a discretion to postpone. Whereas questions might arise in respect of an adjournment as to whether a test of fairness or a Wednesbury reasonableness approach applies, it is far less likely that questions of reasonableness will dictate the answer where postponement is asked for.

1. The argument that the Judge erred is that new medical evidence had become available since the conclusion of his decision, and the interests of justice required such an appeal. The medical evidence is that set out in the GP's letter to which I have referred. Therefore, nothing is said by the Claimant that questions the exercise of the discretion by the Judge as such on the basis upon which it was made on 13 March.

1. Fresh evidence is usually and appropriately to be directed to the Employment Tribunal with a request that the Tribunal should review its decision in the light of that evidence, which it has the power to do. Here, there has been such a review. Technically, if a review concludes in a manner contrary to that for which the applicant for review wishes, it is open also to appeal. Since lodging this appeal, the Claimant's application for a review has been heard; the Judge rejected it. His reasons were, first, that the Pre Hearing Review was not intended to hear issues that would overlap with those of the criminal case; and, secondly, that it was not necessary for the Claimant to attend because he could be represented. Indeed he said that his representative was perfectly capable of assisting him in agreeing a letter of instruction to a medical expert. It should be noted, I interpose, that the Claimant has plainly seen doctors, amongst them his GP, for otherwise the letter of 23 March would not have been written. The Judge notes that his representatives would be required to explain why no expert had yet been nominated and what steps had been arranged for his full medical notes to be made available by his GP for the expert to peruse.

1. Given that this was the basis for the refusal of a review, I infer that they were the reasons also, save and apart from considering the medical evidence proffered, for the decision on 13 March. There is nothing in those reasons that, it seems to me, a Tribunal was not entitled to decide. It might be different if the hearing before the Tribunal in May had effectively required the Claimant himself to give evidence as opposed to enable his representative to say what steps had been taken. It may be that to that limited extent some evidence is necessary, but it certainly does not overlap with the impending criminal case. The decision to maintain the Pre Hearing Review, it seems to me, is a decision that a Tribunal working towards a hearing of the ultimate case in August this year, a time after the criminal case had finished, was entitled to make. Mr Cohen says (and he is plainly correct in this) that it does not appear that the criminal case has been put off because of any overwhelming incapability of the Claimant to attend it and, if necessary, and if wishing to do so, to give evidence at it.

1. For those reasons, judging, I emphasise, this decision upon the basis of the material that was before the Judge at the time, and inferring that the reason for the application was to seek to postpone the case because of the imminence of the criminal hearing, I have concluded that the Judge was entitled to come to the conclusion he did. It follows that this appeal must be, and is, dismissed.