Appeal No.	EAT/1106/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MR D A C LAMBERT
MRS J M MATTHIAS

MBC LTD	APPELLANTS

MR A JAZAERLI	RESPONDENT

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellants	MR P MEAD
(of Counsel)
Instructed by
Messrs Sheridens Solicitors
14 Red Lion Square
London  WC1R 4QL	
For the Respondent	MS L CHUDLEIGH
(of Counsel)
Instructed by
Messrs Thompsons Solicitors
Congress House
Great Russell Street
London  WC1B 3LW	

	MR JUSTICE HOLLAND:	By an IT1 dated 12 November 1998, Mrs Amal Jazaerli complains of unfair selection for redundancy, race discrimination, sex discrimination and unfair dismissal.  All those complaints are lodged against her erstwhile employers, the Respondents to the complaint, MBC Ltd.  The IT1 indicates that she was employed by that organisation from 11 June 1991 to 19 August 1998.  Appended to the IT1 is a document entitled “Full details of complaint of Amal Jazaerli” that extends for some five pages and whereas it is informative, it is perhaps not definitive in its identification of the precise issues.  We do not say that by way of criticism, we say it by way of preface to what follows.

1	The Respondents defended their activity by way of an IT3 and in the overall result, the matter was listed before the Employment Tribunal sitting for London South for a hearing to last no less than 10 days, starting on Monday 11 October 1999.  In the event during the period leading up to that hearing, there were developments.  The first such development, so far as it is material for those purposes, was the submission by way of fax on 1 October 1999 of a medical report on the condition of the Applicant provided by Ms Jane Street, a Chartered Clinical Psychologist, the report being dated 29 September 1999.  The material part of the report is in the latter two paragraphs which reads as follows:

“The redundancy and the period of stress which preceded it has however [had] a much greater impact upon her as it deprived her of her main source of self esteem and also led her to question some fundamental beliefs about a just and fair world.  As a result, Mrs Alsayed has developed a depression with some elements of post traumatic stress.  I believe that the primary trigger for this was the experience of redundancy and that the depression and distress are being maintained by her resulting loss of confidence and the ongoing court proceedings.  

Mrs Alsayed is not currently able to seek employment.  Her concentration and memory continue to be impaired by her depression, her sleep and appetite continue to be erratic and she remains tired and emotionally fragile.  Her impaired motivation continues to affect her ability to complete necessary daily tasks such as housework and paperwork.  It is difficult to predict when Mrs Alsayed would be ready to work as her condition is being partly maintained by the court proceedings, but it is not clear how significant this is compared to her loss of confidence and self esteem.  However, it is likely that she will continue to need psychological support to help rebuild her confidence to enable her to seek further employment.”

2	That report was supplemented some five days later on 6 October with a disclosure of a report by the Applicant’s GP which indicates that it was on 27 October that the Applicant had attended upon him complaining of increasing depression and anxiety relating to problems at work and impending redundancy.  He then indicates the subsequent history and shows that she was referred to Ms Jane Street, who is the Clinical Psychologist attached to the surgery, in and after March 1999.  He concludes:

“In short Mrs Alsayed has suffered from a fairly severe and prolonged depressive reaction triggered off mainly if not wholly by her work circumstances and redundancy.  I feel that only when her work problems are sorted out will she be able to start properly on the road to recovery.”

3	On the following day, 7 October, the Respondents by their solicitors, Messrs Sheridens, sent a letter to the Applicant by her solicitors, Messrs Thompsons, which opens:

“In connection with the pending 10 day hearing on liability we confirm now that the Respondents will not be offering any evidence on liability and does not take issue with any of the matters set out in your client’s originating application as such as it is particularised.  However, should your clients seek now to add any issues to or otherwise amend her claim, these will be strenuously denied and an immediate application sought as cost in respect of any consequent necessary adjournment to the liability hearings.  In this respect we note you have indicated your client’s witness statement is some 96 pages and we have not had the opportunity of considering and taking instructions.”

4	They then in the balance of the letter propose that the first five days of the allotted time should be vacated and that the last three days of the second week should be allocated to questions of remedies.  That in its turn received an alternative proposal from the Applicant’s solicitors, namely that the three day hearing for remedies should commence on Friday 15 October 1999 and continue into the ensuing Monday and Tuesday with their psychologist giving evidence on the Monday.  We have learned today that for reasons not known to Ms Chudleigh, who is presently before us today, it is only from Monday that the psychologist is available to give evidence.  

5	Turning back to the chronology, it is to be observed that the Respondents, by their solicitors, sought with some urgency to obtain their own medical evidence in response to that which has been disclosed and managed to obtain an appointment for the examination of the applicant by, as we understand it, a psychiatrist on 12 October.  For that purpose, they understandably required disclosure of medical records.  That in its turn raised an objection by Messrs Thompsons.  That objection appears graphically from a letter sent by Messrs Thompson to the Employment Tribunal dated 12 October.  Having asserted that they have served certain records upon the Respondents by courier they then go on:

“These are all the applicant’s medical records relating to the period after the termination of her employment.  We do not accept that the Respondents have a right to see her pre-termination records on the grounds that they are not relevant.  You will not be needing any medical evidence of the applicant’s pre-termination state of health (which in broad terms was good hence the fact that she was working without taking days off for sickness).  It is only after her redundancy that her health deteriorated and these are the records that have been disclosed.”

6	In the upshot, absent these records, the Respondents were unwilling to go ahead with the medical examination and such has not taken place.  Turning then to the impact of these events upon the Employment Tribunal on 13 October 1999, the Chairman made the following interlocutory order:

“Upon the Respondent’s conceding liability in this case and upon considering letters dated 8, 11 and 12 October from solicitors from the Applicant, and letters dated 7, 8 and 12 October from solicitors for the Respondent, and upon noting the parties failure to agree dates for a hearing on remedies, it is ordered that the Remedies Hearing will take place on 15,18 and 19 October 1999.”

7	Against that interlocutory order an appeal has been mounted which we have heard today with both parties represented.  The grounds upon which the appeal are brought are that:

“The Employment Tribunal erred in law in that:
The Employment Tribunal failed to permit the Respondent an opportunity to rebut the expert evidence of the Applicant served on 1 October 1999
The Employment Tribunal failed to take into account the prejudice to the Respondent by directing that the remedies hearing should proceed without permitting the Respondent the opportunity to challenge the medical evidence of the Applicant
The Employment Tribunal failed to address adequately or at al the fact that it was impossible for the Respondent to obtain expert evidence in time for the remedies hearing on the Applicant’s psychological condition without access to the Applicant’s full documented medical history”

The balance of the Notice of Appeal complains of the lack of directions and cites Buxton v Equinox Design Ltd [1999] IRLR 160.  

8	Turning then to the approach of this Tribunal we say straight away that we are properly hesitant to interfere with an interlocutory order made by an Employment Tribunal, particularly an interlocutory order that relates to listing.  That reluctance arises from the difficulty in attacking any such order as being sufficiently perverse as to amount to an error in law and the further hesitation arises from the fact that unlike the Chairman of the Tribunal, we have no wider knowledge of the availability of alternative dates nor of the pressures upon his Tribunal when it comes to finding further hearing dates for a matter which on any view requires early resolution.  The amount of time that we have spent considering this matter properly reflects our hesitation.  

9	That said, we have come to the clear conclusion that this is a case in which we do discern such an absence of tenable basis as to make this one of those rare cases in which we should allow the appeal and set aside the direction.  The essential point is that we are not satisfied that the Chairman took clear note of the failure of the Applicant to make available the full medical records and thus the failure of the Applicant to give full facilities for the examination of their client before the proposed hearing that was to start tomorrow.  In fairness to the Chairman, this issue is not fully debated in the correspondence that he looked at and the impact of the Applicant’s position may not fully have been appreciated.  Indeed, it took some effort this morning in the course of hearing to establish with the aid of Mr Mead and Ms Chudleigh the exact place in the scheme of things of these records.  At one stage we were adumbrating the possibility that the records were indeed irrelevant in as much as the only significance of the medical evidence was to demonstrate that post termination the Applicant had not been in a position to mitigate her loss.  That simple position was not accepted by Ms Chudleigh and in fairness to Ms Chudleigh that simple position does not flow from a careful reading of Ms Street’s report.  What does flow from Ms Street’s report is the potential case that the redundancy itself has caused this breakdown in her health and that therein lies a matter to be taken into account when making assessments of compensatory award.  But if the matter has the wider ambit than that first adumbrated then it is patent that the pre-termination medical records are of some importance.  Indeed as we have pointed to Ms Chudleigh in the course of the hearing, there is some importance to her and her case in that an early question to Jane Street must be “have you seen the pre accent medical records?”.  If the answer is no, then that immediately undermines her evidence.  If the answer is ‘yes’, then the Respondents can complain.

10	Turning to the prospective examination by a psychiatrist, it is difficult to conceive of any psychiatrist who would apply his or her mind to this problem without a full inspection of the medical records, not least because as emerges from Ms Street’s report there had been earlier breakdowns in the psychiatric condition of the Applicant when subjected to stress, albeit nothing seemingly of like significance to that which is an unhappy feature of her present  state of health.  Absent those medical records then this case could not proceed tomorrow in a way that would permit justice to be done to the Respondents.  Furthermore one may observe it might well be the Applicant herself would suffer.  Anybody seeking to present a case showing that the breakdown in her health had arisen through the redundancy would normally go straight to the medical records, if only to demonstrate that the Applicant had a certain fragility to stressful events in her life, and that would be a matter much prayed in aid if the question of causation came up for consideration.  

11	Thus, focusing on that particular matter, which does not appear from documentation that was before the Chairman with the same graphic force that we have spelled out, and bearing in mind that the Chairman did not have the advantage of oral submissions as have been presented to us this morning, we feel that we are entitled to allow this appeal and to set aside his order so as to rule that the matter should not be heard on 15, 18 and 19 October.  The further effect of our ruling is that the case should be heard on the earliest possible date by which both parties have reasonable time to prepare their respective cases as to remedies.  

12	That leads us on to the further part of this judgment in which we are driven to express hope rather than make rulings.  Another reason for our prolonged retirement has been our concern over the potential that a ruling in favour of the Respondents on this appeal means that this matter goes out of Employment Tribunal’s list for an unconscionable period of time and that we would seek to avoid if it lies within our power to do so.  The problem is that our powers are extremely limited in this matter.  All we can do is to give guidance.  What we would ask the parties to do at the earliest opportunity is themselves to consult and draft their own directions for the remedies hearing.  The notion of going into the remedies hearing, apparently anticipating three days, without any clear directions does strike this Tribunal as not being in the interests of anybody either Applicant, Respondents or the Employment Tribunal itself.  

13	We make these observations.  The first matter that directions might consider is identifying the issues.  It must be unusual first of all for a Respondent completely to abandon liability when the complaint is put under various heads and it must surely be of some relevance to the Employment Tribunal to discern what it is supposed to be remedying and make sure there is no issue between the parties as to that.  That is, is it to remedy that each of the respective heads of complaint that appear in the IT1, and that have already been spelt out in this judgment; and, if so, on what factual basis?  One can readily see potential arguments arising unless there is a very clear understanding from the start of the position of the Respondents.  

14	That then leads on to the position of the Applicant.  We draw attention to the terms in which the complaint is made and the correspondence specifies no less than 96 pages of witness statement.  The sooner that somebody gets entirely clear what is claimed under what heads, that is, the general thrust of those claims, the better.  Further then, once that is done, the directions may then lead on to the evidence that is to be called on either side, be it expert or lay, as to whether there should be disclosure of statements, and if so, by what timetable.  

15	That would then lead on to what this Tribunal deems to be extremely important, and that is a proper assessment of the time that this remedies hearing will take.  Why important?  Well the answer is that presumably if you are trying to get an alternative slot from the Employment Tribunal at London South, you will have much better chance of obtaining say a day slot, than a three-day slot.  It may well be that you need three days.  It may equally be that on a proper examination of what the issues are in this case, a lesser period is required which then may facilitate the obtaining of an alternative slot.  

16	With that approach to this matter, so the parties are respectively prepared, then they will no doubt approach the Employment Tribunal looking for that alternative slot.  We have tried in the course of argument to see whether the last three days of the original ten day hearing might be still available and that of course is totally speculative and may be over optimistic, but we would ask the Employment Tribunal to be as sympathetic as it can to finding an early slot, once it has through the measures that we have indicated, the full co-operation of the parties.  If there is anything more that we can say at behest of the parties that they think will help them, we would be glad to do so.  We would ourselves make the directions but Mr Mead, perhaps correctly, says we cannot.  But if the parties make their own, no doubt they can be endorsed by the Employment Tribunal, or if there is an issue about them, the Employment Tribunal can resolve it by friendly pressure and in the course of the day, as has been demonstrated, we are all ears and we have a lot of sympathy to both sides.