Appeal No. UKEAT/0322/10/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 July 2010

Before
HIS HONOUR JUDGE ANSELL
(SITTING ALONE)

GLOUCESTERSHIRE CONSTABULARY	APPELLANT

MRS F A PETERS & MR D A PETERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JOHN BOWERS QC &
MS VICTORIA VON WACHTER
(of Counsel)
Instructed by:
Gloucester Police Headquarters
(Legal Department)
1, Waterwells Drive
Quedgeley
GL2 2AN	
For the Respondents	MR DOUGLAS LEACH 
(of Counsel)
Instructed by:
DF Legal LLP
Avonside
63 High Street
Tewkesbury
GL20 5BJ	

SUMMARY
PRACTICE AND PROCEDURE – Postponement or stay

Tribunal in error in refusing to stay further a hearing in relation to disability where the day to day activities of the employee, a service police officer, were also the subject of a police fraud investigation.

HIS HONOUR JUDGE ANSELL

1.	This is in the hearing of an appeal from a decision of Employment Judge Tickle given in a letter dated 10 June 2010 in which he refused an application by the Respondents to Disability Discrimination Act proceedings, the Chief Constable of Gloucestershire to further stay employment proceedings, discrimination proceedings brought by Mrs Peters on the grounds that there were continuing criminal investigations relating to Mrs Peters' employment in particular periods of sickness with the Police allegedly on the grounds of her disability.

2.	Mrs Peters had been with the Police Force since 1989.  In September 2003 she is said to have suffered a road traffic accident when on duty.  The chronology records that she suffered soft tissue injuries to neck, shoulder, back and wrists.  Her disability claim in these proceedings alleges that she has been disabled within the meaning of the Act since that time.  That would therefore mean that she would have to show that because of her injuries and the results of those injuries, she was suffering and continued to suffer substantial impairment of her day‑to‑day activities.  It is right to say that in terms of her claim against the police and in particular the claim for their failure to make reasonable adjustments, the events that she relies on do not commence until January 2008.

3.	The proceedings began in August 2009.  She had had gone off sick, finally, in May 2009 and was on half pay until November and nil sick pay since April 2010.

4.	Since the summer of 2009 the Police have in fact been conducting what appears to be a quite high level investigation into Mrs Peters and in particular in relation to her claims for sickness pay, particularly focusing on periods in 2003, 2005 and 2007, into the beginning of 2008.  Again, from September 2008 to April 2009, and from May 2009 to the present time or certainly until sick pay ceased.

5.	The Police investigation is continuing and has not been concluded, and the learned Employment Judge was given a flavour of that investigation, but certainly not the complete picture, in two statements that were provided to him.  It is a mark of the seriousness which the Police clearly take of this matter that those statements came from the Assistant Chief Constable who is in charge of the investigation, together with the Detective Chief Inspector who is running the operation.  In broad terms, it covers an investigation into Mrs Peters' activities to enquire into whether effectively she has been as unwell as she maintains and in particular, has had the inability to do the activities which she says that she has.  There is reference to surveillance, video surveillance, video clip interviews with witnesses, seizing of computers, seizing of diaries and really a thorough investigation into her lifestyle going back to 2003.  It is right to say that some of the activities with which she has been involved with are admitted by her.  She had an interest in karate and maintains that she has been able to continue it albeit on a light basis.  Activities such as shopping and school activities are also not in dispute.  

6.	There have been a number of attempts to stay the proceedings indefinitely.  It is right to say that on two previous occasions Employment Judges in March and April 2010 allowed short postponements on both occasions really for specific reasons, namely further questioning and investigations.  Employment Judge Leahy, in April 2010, was persuaded the case could be held in abeyance for a further short time to allow Police investigations and CPS investigations to be concluded but found that delay could not be open‑ended and indicated that the matter should be proceeded with considerable dispatch.

7.	In the course of his decision he did not indicate that he was satisfied that the Police enquiries into fraud and in particular the claiming and obtaining of benefits as a disabled person clearly overlapped the Tribunal's jurisdiction as far as the Discrimination Act proceedings were concerned.

8.	At the beginning of June a further attempt was made by the Police to further stay the proceedings.  A letter of 4 June enclosed statements from the Deputy Chief Constable and Chief Inspector Stenner.  Those statements indicated that the enquiries were proceeding, if anything had become more comprehensive, and in particular interviews with Mrs Peters had not been completed.  In particular the last interview had not been proceeded with because Mrs Peters, who was there voluntarily with her lawyer rather than under arrest, had chosen not to continue with it.  The letter of 4 June concluded in this way:  

"The central issue remains, namely that the ongoing criminal investigation means that the Respondent is not able to bring all the evidence on which it wishes to rely at the PHR on disability should the PHR be relisted for a hearing at this stage and that, therefore, the interests of justice will not be served by proceeding at this stage."
 
The accompanying statements really confirmed that matter.  The statement from Mr Stenner said: 

"...there is further relevant evidence/ information that should be considered and brought out in further interviews [further lines of inquiry]."
  
The Assistant Chief Constable's view was that the evidence which had yet to be put to the Claimant goes to the heart of establishing the full extent of the disability she claims in these proceedings to suffer from:  

"[She] needs to be afforded the opportunity of commenting on all the evidence we have obtained as it may be that she has a plausible explanation for her activities."

9.	It is right to say that in the previous interview she had not always given full answers.  I am told today that she had answered the first interview but that on advice or on intervention from her criminal lawyers there had not necessarily been full interviews on previous occasions.

10.	The request for that stay was resisted by her lawyers in a letter of 7 June, pointing out that the issues in the criminal investigation relating to such matters as karate, driving and travelling were all well known and had been considered in part by the doctors who prepared various medical reports.  The lawyers criticised the drip feed approach of the Police in having a number of interviews and putting matters to her on a gradual basis and highlighted in particular the continuing stress that she was feeling as a result of this ongoing process and concluded that the tables have now turned in the interests of justice.

11.	The Employment Judge's brief reasons given in his letter said this: 

"The Employment Judge who has had previous dealings with this case, is not minded to continue the stay.  The Respondent has long enough to make its enquiries.  It is not certain that the issues overlap."

Just commenting there, I am told the Regional Employment Judge had very little to do with this case, certainly the two grants of previous stays had not been dealt with by Employment Judge Tickle.  The Employment Judge had received, in due course, a request for written reasons but argued that rule 30 applied but in a letter of 7 July amplified his earlier reasons.  He said that the letter of 4 June said that limited progress had been made in the Police investigation: 

"I concluded that the further delay outlined in the letter indicated that the Tribunal claim would be unable to proceed until well into the winter - even next year.  Prime facie, that was oppressive, stressful for the Claimant, and a denial of justice in these Tribunal proceedings.  That said, the Respondent said it was unable to bring all the relevant evidence to a Tribunal hearing if it went ahead. 
I also considered the Claimant's letter of 7th June 2010.  From this I concluded (rightly or wrongly) that the Claimant was not really disputing the Respondent's evidence as to her activities.  In that case, she would not be embarrassed at a hearing by declining to answer questions.  At issue, it seemed to me, was not the medical diagnoses (though curiously the Respondent had said it did not accept the report of the joint expert (letter of 26 February 2010) - but did not say why not), but whether her condition had a substantial adverse effect on her normal day‑to‑day activities." 

12.	Although the Employment Judge's decision was refusing an indefinite stay, it seems to me clear that in the letter of 7 July that in particular he had in mind a possible further stay until the Crown Prosecution Service had made up their minds in relation to a possible prosecution.  The Judge’s reasons were criticised by Mr Bowers on the basis that to simply treat the Police's investigation as one into karate, shopping or school activities is in fact to completely minimise what in fact is going on in this case.  Whilst he was in a position to give, as it were, the full flavour of the investigation, he argued that the Employment Judge was clearly in error in seeking to, as it were, minimise it down to those levels. 

13.	So it is against that decision and the reasons given in both letters that this appeal lies.  Although the appeal was launched on the basis that the Police were seeking an indefinite stay, in the light of an indication that I gave earlier on, that certainly, in my view, I felt that such a lengthy stay would be totally out of proportion, bearing in mind if the matter did proceed there was likely to be a Crown Court trial with a defendant who was likely to be on bail and thus meaning that there could well not be a conclusion in the case until towards the end of next year, Mr Bowers sensibly then effectively restricted his remarks to a request that the stay should be continued until the conclusion of the investigation and a Crown Prosecution Service decision.

14.	The Police have sought to put in a further statement from Mr Stenner.  Obviously that is material that was not in front of the Employment Judge and I would be loath to look at it in any considerable detail at this stage.  In fact the bulk of it only seeks to timeline with a little more detail the future progress of the investigation and Crown Prosecution Service decision making.  Indeed it seems that the Employment Judge had some of those matters in mind because of the reasons in his second letter of the 7 July.

15.	So what are the issues?  Quite clearly this is a case management decision.  The point has been made on numerous occasions by this court and the Court of Appeal that the Employment Judges dealing with these matters have a very, very wide discretion under rule 10, and it is one which this court should be reluctant in the extreme to interfere with.

16.	The principle can be seen from the headnote of the case of Bastick v James Lane (Turf Accountants) Ltd, an EAT decision with Arnold J presiding.  The headnote said this: 

"...before the appeal tribunal would interfere with the exercise of the chairman's discretion to refuse to adjourn the proceedings, it was necessary to show either that he had improperly taken into account some matter, or that he had failed to take into account a relevant matter, or that his decision was perverse; that it was clear from the chairman's reasons for his decision that he had considered all the relevant matters: that his decision could not be said to be perverse and that, accordingly, there was no ground for interfering with the exercise of his discretion."  

Peter Gibson LJ really echoed those comments in the case of Teinaz v Wandsworth [2002] IRLR 721, where at paragraph 20 he said this:  

"But one recognised ground for interference is where the tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account: see, for example, Bastick v James Lane…  The appellate body, in concluding whether the exercise of discretion is thus vitiated, inevitably has to make a judgment on whether that matter should have been taken into account.  That is not to usurp the function of the lower tribunal or court:  that is a necessary part of the function of the reviewing body." 

17.	In summary, Mr Bowers' arguments are that this experienced Regional Judge has in fact not taken into account or certainly paid sufficient importance to, in particular, the issue of prejudice both in terms of the Police being able to put all their material into the Tribunal proceedings and also to a lesser extent possible prejudice if the Tribunal proceedings took place before the Police enquiries were concluded.

18.	He criticised Employment Judge Tickle in his brief reasons, forming a view that he was uncertain as to whether the issues overlap.  Mr Bowers argued that it could scarcely have been a clearer case, as the issues clearly do overlap.  The issue in this court is indeed substantial impairment which will involve an analysis of activities and it is that selfsame analysis of activities with which Mrs Peters has been engaged in her life, whether it be sport, shopping, school or whatever else the Police are looking at, that will form the basis of their decision as to whether or not she was fraudulent in making her claims for sick pay or other benefits.  

19.	Mr Bowers also argued that it has by no means been clear from the Employment Judge's letter that he paid any or any sufficient attention to the material that accompanied the letter of 4 June.  Certainly it is not referred to in either letter.  Mr Leach argued that the reference to the letter of 4 June and matters that Employment Judge Tickle commented on in his letter of 7 July should raise certainly the inference that he had looked at all the material, but certainly there is no impression from Mr Tickle's comments that he had regard to the very high level of inquiry that was taking place in relation to Mrs Peters.  

20.	So the appellant's approach is this.  There will be prejudice in terms of a fair trial.  The Crown Prosecution Service has said, and it is in the statement and the letters that they do not want to release the material until the current inquiry is concluded and a decision taken.  The Police argue that their inability to use whatever material is there in the short‑term will prejudice their position in these proceedings and an early hearing of the disability issue could, as it were, also prejudice the remaining part of the Police enquiries bearing in mind the hearing of the disability issue is scheduled to take place before Employment Judge Tickle on 1 September.  

21.	The possible risk to concurrent proceedings can be first of all categorised as a breach of Article 6 in the current edition of Lord Lester, Lord Pannick's and Mr Herbert's well‑known work, Human Rights Law and Practice at paragraph 4.6.31.  The learned editors set the position out as thus: 

"The right to a fair hearing requires that everyone who is a party to proceedings must have a reasonable opportunity of presenting his case to the court under conditions which do not place that party at a substantial disadvantage vis a vis his opponent.  This is the principle of ‘equality of arms’ and involves striking a ‘fair balance’ between the parties."

22.	In the case of Farrell v Stenning, only reported in [1977] Current Law page 313, the issue of prejudice is dealt with in this way:  

"Once it was found that there was an element of potential to the party applying for the adjournment of the civil proceedings in relation to his forthcoming criminal trial, the court was bound to consider whether the right course was not to adjourn the civil proceedings pending the criminal trial."  

It is right to say that most of the authorities in this area consist of employees/defendants often seeking to adjourn civil proceedings, such as tribunal proceedings because of forthcoming criminal trials and issues such as the right of self incrimination which has not been raised by Mrs Peters in this case but has been raised on her behalf by Mr Bowers often coming to play.

23.	The issue of prejudice was also dealt with by Ferris J in Secretary of State Trade and Industry v Crane & Anors reported at [2004] BCC page 825, where he referred to a principle set out by Neill LJ in the earlier case of ex parte Fayed [1992] BCC 524, at page 531E where the learned Lord Justice said this: 

"It is clear that the court has power to intervene to prevent injustice where the continuation of one set of proceedings may prejudice the fairness of the trial of other proceedings ... But it is a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice." 

24.	Finally a further passage in Jefferson Ltd v Bhetcha [1979] 2 All ER 1108, referring to the headnote there, where the court said:  

"An important factor to be taken into account by the court in deciding whether to grant a stay... was whether there was a real, and not merely a potential, danger that the disclosure of the defence in the civil action would lead to a potential miscarriage injustice in the criminal proceedings."

Again, a case of adjourning out civil proceedings because of a prejudice to a defendant in criminal proceedings. 

25.	Mr Bowers argues that there is a clear overlap of issues and therefore the learned Employment Judge got that issue wrong; he further argued that it is not correct, as Mr Leach put it, that the issues can be distinguished in terms of fraud, on the one hand, and disability on the other.  Although they may be, as it were headings, the headlines that are in front of the criminal and Employment Tribunal respectively, when one looks below those headlines one ends up at the self same factual basis, the factual matrixes are indeed the same for both of them.  Mr Bowers argues that the evidence before the Employment Judge showed there was substantial material still to put to her, whether or not she chooses to answer it, one cannot say.  It is not for the Employment Tribunal to try to foreshadow what she was saying in any further Police interview and there is a whole host of material which has to be put to her, before material is submitted to the Crown Prosecution Service to take a decision.  It is that self‑same material he argues, which will be the basis of the employer's attack upon her when it comes to dealing with her impairment.

26.	In terms of delay, it is acknowledged that the proceedings and the investigation have been underway for some time, and Mr Bowers accepts that there clearly should be finality in some way, as soon as possible, although of course he points out that if there is to be a prosecution her employment issues are certainly not going to be resolved in the near future. 

27.	Mr Leach, in response, reinforces the request for the Court not to interfere with the Employment Judge's decision and refers me to a number of authorities in the bundle before me.  I do not propose to refer to them all.  In particular one can see it from North Yorkshire Police v Ashurst [1995] EAT/1280/95.

28.	He submitted that this was now the fifth attempt to stay proceedings and all that the Police are doing is to try to effectively re-litigate the issues.  He reminded me particularly what Employment Judge Leahy had said.  Acknowledging as Employment Judge Leahy has done that there may well be an overlapping of issues, he had felt it appropriate for the Police to get on with matters which is why he granted only a limited stay.  He argues that Employment Judge Tickle did indeed have all the issues in front of him which are before me, had the statements and he must have been presumed to have read those statements and therefore be mindful of what the Police were asking.  In particular, he submits they have not really shown any real prejudice to the continuing investigation.  He argued the material is there, it can be released for the purposes of the Force defending these proceedings.  If they choose not to rely on that material, it is really a matter for them.  The material is there.  Mrs Peters is aware of the issues and therefore the element of surprise does not exist.  He reinforces the arguments on delay.

29.	I am satisfied that the wide discretion that Employment Judge Tickle exercised was incorrectly exercised.  First of all, it started off on the premise that there was not, as it were, a substantial overlap of issues.  For the reasons I have indicated already that is just not right in my view.  As I made clear, I hope already, in my view the factual background, the underlying facts in relation to both investigations or both proceedings are remarkably similar.

30.	I am satisfied there is still a very serious and high level Police investigation underway.  It may be it is a high level because it involves a serving Police officer, but nevertheless there is clearly a high level Police investigation underway which, if anything, has become more complex.  I am satisfied that the Police should be given some little extra time to complete those inquires with a further interview, particularly since the last interview was apparently curtailed at the request of Mrs Peters herself.

31.	I am also satisfied that it is proper for the Crown Prosecution Service not to want to reveal all the documents and information by 1st September.  Until enquiries have been completed and the file put together, there is prejudice to that investigation in those documents being revealed, as they would have to be revealed if the Police are to conduct a proper defence of the Employment Proceedings.  Indeed it seems to me that an early hearing before the Employment Judge also has the potential to harm the continuing Police investigation.

32.	I fully accept this matter has been underway for some time and that the continuing stress must affect Mrs Peters.  But as I have pointed out already, if there are to be continuing Police proceedings, the stress will unfortunately still be there for some foreseeable time.

33.	I am not persuaded, however, that this matter must be stayed until the conclusion of the Police proceedings.  That is an unknown quantity and it seems to me that it could be dealt with by means of a final stay, giving the Police a little more time to complete the inquiry and to make the prosecution decision.  Once a decision is made about a prosecution, then papers would be disclosed within the criminal proceedings either by way of primary or secondary disclosure.  It would then be, of course available for the Employment Tribunal proceedings.  Although they have argued that the whole criminal prosecution may be tainted if there is to be a determination of the Tribunal issue, I am not persuaded that that risk is strong enough and it seems to me also that the delay of Police proceedings not being concluded for a year or 18 months outweighs in any event what prejudice there might be.  But, in the courts we are now well used to determining civil or family issues of a serious nature before the Crown Court does get to grips with them and remarkably it does seem to me little prejudice, if at all, results.

34.	Insofar as it might be argued that I am imposing a decision which in fact was not in front of the learned Employment Judge, I would only comment, as I have done already, that certainly from Mr Tickle's letter of 11th July, it did seem to me that he had in mind a possible stay until the Crown Prosecution Service had made up their minds, although an indefinite stay had been sought.  Therefore it seems to me that it is proper for me to consider that as a realistic option.

35.	In any event it seemed to me that the somewhat tortuous course of sending the matter back for yet another hearing before Employment Judge Tickle was unnecessary and it was appropriate for me to take a view on the situation, with all the material in front of me.  What I propose therefore is that Employment Judge Tickle's order is replaced by an order granting a limited stay which should be expressed as a final stay until 31st December 2010.  By that time the Police will simply have to get their tackle in order and therefore an early hearing can take place before the Employment Judge on the issue of disability.  He had set down a period I think of half‑a‑day for that issue.  It seems to me that might be somewhat of an optimistic time estimate.  But those involved in the proceedings will no doubt let the Tribunal know as to the more appropriate time to be allocated.