Appeal No. UKEAT/0496/08/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 2009

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR R LYONS
MR T MOTTURE

ROYAL WEST SUSSEX NHS TRUST	APPELLANT

DR A BHATTACHARYYA	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A TABACHNIK
(of Counsel)
Instructed by: 
Messrs Capsticks Solicitors
77/83 Upper Richmond Road
Putney
London  SW15 2TT
	
For the Respondent	MR J ALGAZY
MR D MASSARELLA
(of Counsel)
Instructed by:
Messrs Healys Solicitors
8 & 9 Old Steine
Brighton
East Sussex
BN1 1EJ

SUMMARY

PRACTICE AND PROCEDURE: Striking-out/dismissal

Decision of Employment Tribunal not to strike out totality of Claimant’s claims, notwithstanding his non-co-operation in the obtaining of a medical report, upheld subject to one point of clarification.

THE HONOURABLE MR JUSTICE UNDERHILL

1.	The Claimant was, until his dismissal with effect from 5 September 2006, employed by the Respondent Trust as an associate specialist in the Accident and Emergency Department of St Richard’s Hospital, Chichester.  He is of Indian ethnic origin.  We should note, because she features in the story which follows, that his wife is also a doctor.

2.	On 1 December 2006 the Claimant brought proceedings against the Trust in the Employment Tribunal, complaining of unfair dismissal, of being subjected to a detriment contrary to Part IVA of the Employment Rights Act 1996 (the so-called “whistleblower” provisions), of disability discrimination, sex discrimination and race discrimination (in each case alleging both “ordinary” discrimination and discrimination by way of victimisation) - we should note however that the claim of sex discrimination has since been withdrawn - and of unpaid salary.  He also included in the originating application a claim for damages for personal injury.  The text of the pleading formulates this as a claim in tort, i.e. for breach of a duty of care, but it appears from the heading that it was in fact intended to allege that the injury in question was a consequence of the alleged discrimination and/or Part IVA detriment, and that is how it appears to have been understood.  The injury pleaded took the form of mental ill-health, though no further particulars are given.

3.	The relationship between the parties to these proceedings, and specifically between the respective solicitors, originally Messrs Penningtons for the Claimant and Messrs Capsticks for the Trust throughout, has regrettably been acrimonious from an early stage.  

4.	In circumstances which we will set out presently, the Trust applied for the entirety of the Claimant’s claim to be struck out pursuant to rule 18 (7) (c) of the Employment Tribunal Rules, which gives a tribunal the power to strike out on the grounds that the manner in which proceedings have been conducted has been scandalous, unreasonable or vexatious.  That application was heard at a pre-hearing review on 9 and 10 July 2008 by an Employment Tribunal sitting at Southampton, chaired by Employment Judge Thacker.  Evidence was called by both parties: in particular, both the Claimant and his wife gave evidence.  The application was only partly successful.  By a Judgment and Reasons sent to the parties on 21 August 2008 the Claimant’s claim of disability discrimination was struck out in its entirety and a direction was made that the Claimant should not be entitled to adduce any medical evidence (save for GP records) in support of the remaining claims.  However, the Tribunal declined to strike out the remainder of the claims.

5.	The primary matter before us is an appeal by the Trust against that decision, essentially on the basis that it did not go far enough.  That appeal was due to be heard on 12 March this year but had to be adjourned at the last minute because of conduct on the part of the Claimant, of which we do not know the details, that caused Penningtons to be professionally embarrassed and to have to withdraw.  The Claimant was ordered to pay the costs of that adjournment.  A subsequent hearing date for the appeal was vacated to suit the convenience of both parties’ legal teams.  Matters were subsequently complicated by a proposed cross-appeal and by associated appeals from recent procedural decisions of the Employment Tribunal, of which we need not give the details and which account for the further delay in matters finally coming to a hearing.  

6.	Before us, the Trust has been represented by Mr Andrew Tabachnik and the Claimant by Mr Jacques Algazy and Mr David Massarella.  Because of the unexpected loading into the hearing of the cross-appeal and associated matters, we had to impose a time limit on counsel’s submissions.  It was Mr Tabachnik who was primarily affected by this, but he cut his coat according to his cloth admirably, and we have of course taken into account not only those submissions which he was able to develop at length orally but those in his skeleton argument on which he was only able to touch briefly.

7.	We take first the appeal.  We will start by setting out in summary the conduct on the part of the Claimant on which the Trust relied in making its strike-out application, together with the Tribunal’s conclusions as to the reasonableness of that conduct.

8.	The story starts with standard directions issued by the Tribunal in January 2007, relating to the claim of disability discrimination.  Those directions required the Claimant to provide his own medical report, along with a statement dealing with the alleged disability, with the Trust having then to inform the Claimant and the Tribunal whether it disputed the claim of disability.  Pursuant to that direction, the Claimant in due course submitted a report from a Dr James, expressing the opinion that he suffered from a depressive illness amounting to a disability.  The Trust said that it wished to obtain its own report and that it disputed the issue of disability in the meantime.  Penningtons’ initial response, by letter of 3 May 2007, was that the Claimant was not willing to be examined by the Trust’s expert and that furthermore they would invite the Tribunal to take the view that any report which was not based on examination should carry little or no weight.  The Tribunal found – and indeed the Claimant’s then counsel, Mr Majumdar, accepted - that that was an unreasonable stance, as it plainly was; but it described the unreasonableness as “relatively minor” and as having done no more than cause some delay and possibly some additional costs.

9.	At a pre-hearing review in September 2007 agreed directions were made under which, among other things, the Trust’s expert psychiatrist was to be permitted to examine the Claimant.  It was common ground, as the Tribunal expressly recorded (though it was not expressly reflected in the directions), that the examination was intended to cover not only the issue of whether the Claimant suffered from a disability but also the pleaded issues relating to the personal injury claim and the extent to which the Claimant’s future employment prospects had been affected by the alleged injury.

10.	The Trust’s nominated expert was a Dr Gill.  He saw the Claimant at his home on 11 November 2007.  After the Claimant had talked for about an hour, a problem arose about privileged material, and it was agreed that the examination should finish then and be resumed on another occasion.  The Tribunal declined to find the Claimant’s conduct on this behaviour unreasonable: it found that Dr Gill had been willing to allow the Claimant, so to speak, to make the running in the early stage of the interview.  That conclusion is not challenged.

11.	A resumption of the examination was agreed for 19 December 2007, to take place at Penningtons’ offices in London.  By agreement, the examination was tape-recorded; and there was before the Tribunal, and is before us, a full transcript.  There is a broad summary at paragraphs 33 to 37 of the Reasons, as follows: -  
“33.	The meeting started with a comment made by Dr Gill in relation to the apparently impressive nature of Penningtons London offices.  We entirely accept that Dr Gill, in making such a comment, was genuinely trying to ‘break the ice’ and lighten the mood.  We do not therefore criticise Dr Gill.  However, we do understand why Dr Bhattacharyya may have taken umbrage at it.  A threat in relation to costs had been made, he was personally funding the litigation and it can be seen how he would have perceived the remark personally.

  34.	Thereafter, the meeting became bogged down in a discussion about informed consent Dr Bhattacharyya agreed that he could be asked questions about disability and personal injury but did not think that there was any justification for asking about his personal history.

  35.	It is obvious that Dr Bhattacharyya became uncomfortable.  He brought up the question of whether a ‘mental health assessment’ was being conducted and this term was then used by Dr Gill.  We have no doubt that nothing sinister was meant by this but it seems to us that Dr Bhattacharyya became concerned and put a different interpretation on what Dr Gill was proposing to do. 

  36. This led to Dr Gill having doubts about carrying out his assessment.  He telephoned the solicitor with conduct of the case, Mr Hamilton.  Dr Gill indicated that Dr Bhattacharyya was only willing to answer certain questions and it is plain that Mr Hamilton agreed that the examination could not continue. 

  37.	Dr Gill then told Dr Bhattacharyya that he, Dr Gill, ‘was calling it a halt because I can’t proceed on the present basis’.  This led to Dr Bhattacharyya telephoning his solicitor to seek advice.  Having done so, it appears from one of the transcripts that Dr Bhattacharyya was actually willing to proceed and it seems to us that he was possibly willing to talk about those matters which Dr Gill had thought relevant.  Indeed, we note that Penningtons, in their letter of 19th December 2007, indicate that they advised Dr Bhattacharyya to answer questions in full and that he understood and intended to follow this advice.  However, by this stage, it seems that Dr Gill did not feel that the necessary trust was present to continue.” 

12.	The Tribunal’s conclusion in relation to this examination is at paragraph 57 of the Reasons and reads as follows:
“We deal next with the second appointment.  We have carefully considered the transcript of this meeting and note that Dr Bhattacharyya initially raised the issue of consent.  However, whilst we make not criticism of Dr Gill, we think that the unsatisfactory outcome of this meeting can, to some extent, be attributed to both parties.  Dr Gill was rightly concerned about the issue of informed consent and doubtless acted upon the advice of his instructing solicitors.  However, the fact remains that Dr Bhattacharyya did, at the end of the meeting, evince an intention to answer the questions which Dr Gill wished to explore.  Given this, we think it would be wrong to characterise the behaviour as unreasonable.”  

That conclusion is challenged and we shall have to say something more about what happened at the meeting at a later stage in this judgment.  

13.	The breaking-up of the meeting in the circumstances recorded by the Tribunal led to a further application by Capsticks to the Tribunal, and on 8 January 2008 to an order that the Claimant attend an examination with Dr Gill within the following three weeks and without pre-conditions.

14.	An appointment was duly fixed for 22 January, but the Claimant missed his train to London because his wife was unable to drive him to the station.  He telephoned Dr Gill’s office to say that he would be late but still intended to attend; but Dr Gill cancelled the appointment.  The Tribunal declined to find the Claimant’s conduct on this occasion unreasonable, and that conclusion is not, as such, challenged.  However, it went on to find - on the basis, it appears of answers given by the Claimant in cross-examination - that if the examination had taken place it would probably have been abortive for essentially the same reasons as the second examination – that is, because the Claimant would have made the same point about consent and Dr Gill would not have felt able to continue on that basis.  That “hypothetical conduct”, the Tribunal stated in terms, would have been unreasonable: see paragraph 61 of the Reasons.

15.	The Trust’s solicitors had for some time been making representations to the Tribunal that the 20-day hearing date fixed for July 2008 could not be maintained in view of the difficulties being experienced in relation to the Claimant’s medical examination; in April the date was indeed vacated.  That was ordered in early April 2008.  

16.	Very shortly thereafter the Claimant and his wife made a formal complaint to the General Medical Council about Dr Gill’s conduct at or in relation to the three appointments.  The Tribunal summarised the substance of that complaint at paragraph 48 of the Reasons in the following terms:
“Dr Bhattacharyya, with the assistance of Dr Kirkwood [his wife], instituted a formal complaint with the General Medical Council about the conduct of Dr Gill.  Although the initial complaint form is dated 1st April 2008, it seems that it was not sent until at least the middle of that month.  In it, a number of serious allegations are made, including dishonesty, the charging of excessive fees, failing in the duty to safeguard the health of a patient and the public and the acceptance of instructions in order to make a pre-determined finding.” 

17.	On 25 June 2008 the GMC said that it would take no further action.  The Claimant responded on 27 June protesting at that decision and describing Dr Gill as “a dishonest practitioner who will do anything in return for a fee”. As to that, the Tribunal found as follows, at paragraph 62:
“We have no doubt that this can properly be described as unreasonable.  Indeed, depending upon the degree of intentionality, it might be suitable to label it as scandalous.  The matter set out in the complaint letters are couched in sometimes intemperate language and, it seems to us, are out of all proportion to the substance of the complaint.  We consider it significant that Mr Majumdar did not seek to cross-examine Dr Gill on this point or even suggest that he had, in any way, behaved inappropriately.”  

After looking at one or two particular points, it said this, at paragraph 73:
“The view of all of us is that Dr Bhattacharyya was probably motivated by a fear of the type of report that Dr Gill might produce.  It seems to us that Dr Bhattacharyya’s use of the term ‘mental health assessment’ is indicative of this fear.  This might be borne of a fear as to the impact that a negative report from Dr Gill might have upon his career, but this is necessarily speculative.  However, we are clear that there was an attempt to prevent Dr Gill from giving evidence to the Tribunal.”  

It then went on to explain that there was a difference between the members.  It explained that one of the lay members, Ms Gilday, considered that the Claimant did not genuinely think that Dr Gill had acted unprofessionally and accordingly that the making of the complaint was simply a cynical device to produce the result - which all the members agreed was intended - of preventing him from giving evidence to the Tribunal.  The majority clearly disassociated themselves from the latter finding.  It continued:
“75. 	However, the Tribunal is unanimous in agreeing that, whatever view is taken, that Dr Bhattacharyya’s conduct amounts to an attempt to interfere with Dr Gill’s role as an independent expert witness.  Even assuming in Dr Bhattacharyya’s favour, as the majority has done, that he had a sincerely held fear in relation to the examination, there is no doubt that his conduct was unreasonable and in connection with the proceedings.  
  76. 	Furthermore, we are united in concluding that once Dr Bhattacharyya had put in his complaint Dr Gill could not act.  This would have been apparent to Dr Bhattacharyya, an intelligent individual in the same profession.  The effect of his actions was to prevent the Trust from having its choice of expert.” 

18.	It was against that background that the Tribunal made the orders which we have indicated.  Its reasoning is somewhat discursive and we need not set it out in full for the purpose of the issues which we have to decide.  We should only note the following points: 

(1)	The Tribunal held that a fair trial on those issues which did not depend on medical evidence was still possible, notwithstanding the passage of time: see paragraph 78.  

(2)	It considered that the striking out of the disability discrimination claim was a proportionate sanction for the Claimant’s unreasonable behaviour.  That decision is not challenged in any cross-appeal.  

(3)	In relation to the remaining claims it said this:
“85.	We do not think that it would be right to deprive him of the right to bring his complaints.  He has raised matters which are of great concern to him, including matters relating to alleged race discrimination and issues of public interest in the health service.  For the reasons explained above, his conduct has not made a fair trial of the substantive issues impossible.”  

	And then, still in relation to those claims, it said, at paragraphs 91 to 92:
“91.	In relation to the other claims, we order that Dr Bhattacharyya not be permitted to rely upon any expert medical evidence, save for that set out in GP records.  We do not strike them out entirely since, unlike the claim for disability discrimination, it may be possible for him to establish loss without expert evidence.  We recognise that our decision in this respect will have a significant impact on his ability to pursue a claim for loss of earnings.  However, he will still be able to make such a claim and, furthermore, on his claim for race discrimination, he will be able to make a claim for hurt feelings.  
92.	It is open to the Trust, if it wishes, to adduce fresh expert evidence.  However, given the absence of expert evidence on Dr  Bhattacharyya’s side, it will have to establish there is in fact a need for such evidence and such application can be made in due course.”  

At the risk of spelling out the obvious, the distinction which the Tribunal was plainly drawing between the disability discrimination claim and the other claims was that while, for the former, proof of disability, which required medical evidence, was essential to liability, in relation to the others it was relevant only to compensation.

(4)	Finally, it proceeded to make directions.  We need not set those out in full, but we should note that at paragraph 96 there was a direction that any application by the Trust to rely on expert medical evidence should be made at a resumed pre-hearing review for which provision was made.

19.	It seems to us that the logic of the Tribunal’s reasoning as it applies to the claims other than for disability discrimination is that the Claimant ought not to be permitted to advance any claim which is dependent on medical evidence - and specifically therefore any claim to have suffered personal injury as a result of the acts alleged, or any claim to loss of earnings consequent on such injury, or any claim that his state of health is such as to preclude him from mitigating any loss of earnings consequent on his dismissal.  Some passages in the Reasons, and in particular some aspects of paragraphs 91 and 92, appear to recognise that that is the effect of the decision; but in other respects the drafting is ambiguous, and it could be said that the order does not fully give effect to that position because the Claimant could still, at least in theory, attempt to prove loss under those heads by resort to his own or his wife’s evidence or to the GP notes.  We think it very unlikely that that was the Tribunal’s intention; but if it was we regard it as irrational having regard to the thrust of the reasoning as a whole.

20.	In our view, it would be right to put matters beyond doubt by formally allowing the appeal so as to provide that, as we have said, the Claimant ought not to be permitted to advance any claim which is dependent on medical evidence.  (For the avoidance of doubt, we use “claim” not in the sense simply of a claim under the Act as a whole but in terms of any assertion.)  Mr Algazy has acknowledged that the logic of the position must be as we have said, and his only objection to our seeking to clarify the matter in the way proposed has been that there may be points of detail about precisely what evidence is and is not affected by the ruling, which are better resolved by the Tribunal as a matter of case management: he gives as an example the status of the GP notes.  It may be correct that there will be matters requiring decision by the Tribunal, but it does not seem to us a reason for not clarifying the position so far as possible at this stage.  We should make it clear that GP notes would remain perfectly admissible for any purpose save that of advancing a claim of the kind that we have indicated.  There may still be grey areas about the overlap between a claim for compensation for injury to feelings and compensation for personal injury in the form of mental ill health.  Those two are conceptually quite distinct but less easy always to distinguish in practice (see the decision of this Tribunal in HM Prison Service v Salmon [2001] IRLR 425); but those difficulties are inherent in the way in which the law has developed in this area and we have no doubt that the Tribunal can deal with them appropriately.

21.	To that extent, therefore, it seems to us that the appeal must be allowed.  But we have yet to address the pleaded grounds of appeal.  These were originally five-fold.  Ground 5 has now been stayed by agreement on the occasion of the adjourned hearing in March.  The remaining grounds are, however, also to some extent affected by the clarification that we have already decided should be made.  Grounds 1 and 2 are essentially concerned with the difficulties which the Trust says that it would face if the medical issues remained live.  Since we have now made clear that that will not be the case those grounds fall away.  That leaves grounds 3 and 4.  

22.	Ground 3 is that the Tribunal was wrong to hold that it was still possible for a fair trial to be held.  This is one of the areas where Mr Tabachnik largely relied on his skeleton argument and which he did not seek to develop orally.  He was wise to take that course.  The question whether the claim remained fairly triable was one that the Employment Tribunal was peculiarly well placed to judge and which it is very difficult to challenge in this Tribunal.  We would say only that we see no error of law in the assessment made by the Tribunal.

23.	We turn to ground 4, to which Mr Tabachnik devoted most of his oral argument.   This reads as follows:
“The Tribunal erred in law in (a) failing to find that the Claimant’s conduct at the second meeting with Dr Gill was unreasonable and in (b) failing insofar as the majority of the Tribunal are concerned, to consider or decide whether the Claimant had an honest belief in his GMC complaint and subsequent steps in relation thereto.  Both of these matters impacted on the seriousness and degree of culpability of the Claimant’s unreasonable conduct and thus on an assessment of the proportionate sanction.”  

We take the two identified elements, (a) and (b), in turn.  

24.	As to (a), we have read carefully the transcript of the examination.  In our view the Claimant’s conduct throughout that examination was unreasonable and obstructive.  He was determined to limit the scope of the questions which Dr Gill might ask.  He advanced various distinctions, not all of which were easy to follow, but which, so far as we could understand them, were plainly bad.  He fastened in particular on the question of “informed consent” and drew to Dr Gill’s attention the relevant GMC guidelines, which he had brought with him to the examination, which made it clear that it was professionally improper for a practitioner to proceed with any examination without the patient’s consent.  He made it clear that he expected those guidelines to be followed and that if they were not he would “take it further”.  It is true that by the end of the examination, having spoken to Penningtons as the Tribunal records, the Claimant did seek to make it clear that he was prepared to answer all Dr Gill’s questions.  However, he continued to qualify that by saying that he would do so “without consent”.  That was a qualification that was very difficult to understand, but it was, as the Tribunal found, one which Dr Gill was entitled to feel put him in an impossible position.

25.	The Tribunal’s conclusions in relation to this interview are not very explicit.  As we read it, however, and taking into account its observations on the “hypothetical stance” which the Claimant said he would have adopted at the third examination if it had taken place, we think that the Tribunal must have found the Claimant’s conduct in the early stages of the interview unreasonable but have felt that the position was corrected by his clarification, having spoken to his solicitors, that he would answer Dr Gill’s questions.  If so, we would ourselves respectfully differ.  We cannot see that the Claimant’s ostensible change of position at the end of the examination either corrected his unreasonable conduct in the early part or cleared matters up for the future in view of his continuing insistence that he would answer any questions “without consent”; and we accept Mr Tabachnik’s submission that the Tribunal’s finding that the Claimant’s hypothetical stance at the third interview would have been unreasonable is inconsistent with it not reaching the same conclusion about the same stance at the second examination.

26.	However, although we would ourselves for those reasons differ from the Tribunal’s assessment, it is doubtful whether that entitles us to intervene in its overall conclusion.  We must not lose sight of the fact that the Tribunal had the advantage of not only reading the transcript but hearing the Claimant’s explanations about it, which we have not, although we have seen some partial notes of the cross-examination.  Even if we take the view that the Tribunal was unduly kind to the Claimant on this occasion, it is doubtful whether it went so far as to fall outside the scope of its legitimate area of judgment to constitute an error or law.  In any event, if we were entitled to intervene Mr Tabachnik accepted that this is a case where we should, in the event of any misdirection, exercise our own judgment about the appropriate consequences of the Claimant having been held to have acted unreasonably in this further respect - that is, he did not suggest that we should remit the whole matter to the Tribunal.  The essential question thus is whether our difference of view from the Tribunal about this aspect makes the difference between the making of the order which the Tribunal in fact made and proceeding, as Mr Tabachnik submits we should, to strike out the Claimant’s claims in their entirety.  We do not believe that it does.  The Tribunal struck a careful balance between a proper recognition of the seriousness of the Claimant’s conduct and its consequences on the one hand and the prejudice to him of dismissing the whole of his case, the liability aspects of which were unrelated to his misconduct, on the other.  It believed that to take the latter course would be disproportionate.  In our view that is a correct assessment and remains so even if this extra element is added.  We note that, serious as the Claimant’s conduct was on this occasion, it was on any view much less bad than his conduct, as the Tribunal found it, in relation to the GMC complaint.  Mr Tabachnik said that the circumstances here were different because if the Claimant had behaved reasonably on this occasion it would have been possible to keep the July 2008 trial date.  That may be so, but it does not in our view tip the balance, particularly since the Tribunal expressly held that a fair trial remained possible.

27.	As for point (b), we do not accept that the majority failed to consider whether the Claimant had an honest belief in his GMC complaint.  In our view it is necessarily implicit in the explanation of the different conclusions of the majority and the minority on this point that the majority found that the Trust had not satisfied them that the Claimant had no such belief.  That is sufficient.  

28.	For those reasons, we see no basis for interfering with the decision of the Tribunal beyond the limited extent which we have described above as clarification.

29.	We reached the conclusion expressed above after having heard Mr Tabachnik’s submissions, going first on the appeal and also by way of anticipation on the proposed cross-appeal, together with the submissions of Mr Algazy on one limited point, namely the so-called clarification.  We communicated our decision to the parties after the lunch adjournment.  Mr Algazy asked for some time to consult with his client and in due course informed us that he did not wish to pursue the cross-appeal or the two associated appeals from the decisions of the Tribunal and the underlying review application in the Employment Tribunal to which those appeals relate.  In those circumstances we need not take up time in explaining the background to the proposed cross-appeal or those appeals.  As a matter of form we refuse permission to bring the cross-appeal out of time and we dismiss appeals PA/1202/09 and PA/1203/09.

30.	We would wish finally to say this.  Both Employment Judge Freer and the Regional Employment Judge have had occasion to be critical of the manner in which this litigation has been conducted to date and in particular of the tone of the inter-solicitor correspondence.  We have not examined this in any detail, but from what we have seen those strictures seem to us to be well-merited (though it may be fair to exclude the Claimant’s current solicitors from them).  We would urge the parties from now on to make a real attempt to deal with this litigation in the spirit of the over-riding objective.  To do so will save costs, it will minimise the stress and distress for the parties inherent in litigation of this kind, and it will also help rather than hinder the Tribunal in its task of trying to do justice fairly and efficiently between the parties.

31.	We are grateful to both counsel for their assistance.