Appeal No. UKEAT/0290/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 September 2011

Before
HIS HONOUR JUDGE RICHARDSON
(SITTING ALONE)

DOMINIC FAVERSHAM GROUP	APPELLANT

MR A McINTYRE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR PAUL GILROY
(One of Her Majesty’s Counsel)
Instructed by:
DWF Solicitors
5 St Paul’s Square
Old Hall Street
Liverpool
L3 9AE	
For the Respondent	MR SEAN JONES
(of Counsel)
Instructed by:
Hugh James Solicitors
Hodge House
114-116 St Mary Street
Cardiff
CF10 1DY	

SUMMARY
PRACTICE AND PROCEDURE – Postponement or stay

The Employment Judge wrongly held that there was no overlap at all between the disability discrimination claim and the High Court proceedings; and failed to consider the potential disadvantages of separating the disability discrimination claim from the unfair dismissal claim.  In view of the Claimant’s serious medical condition the matter will be remitted with a view to careful case management of both High Court and Employment Tribunal proceedings.

HIS HONOUR JUDGE RICHARDSON 

1.	This is an appeal by Dominique Faversham Global LLP (“DFG”) against a decision of Employment Judge Shotter sitting in Liverpool dated 5 April 2011.   On 31 January 2011 Mr Andrew McIntyre brought a claim against DFG alleging disability discrimination and constructive unfair dismissal.  On 4 March 2011 DFG brought proceedings against Mr McIntyre in the High Court and sought a stay of the proceedings in the Tribunal.  The Employment Judge granted a stay in respect of the unfair dismissal claim but not in respect of the claim for disability discrimination.

2.	Mr McIntyre was employed by DFG as its Chief Financial Officer from 2 October 2006.  He worked a 30 hour week.  The chief executive of DFG is Mr Mairs.  On 29 April 2010 he was diagnosed with a high-grade cancerous brain tumour.  On 6 May he underwent major brain surgery to remove the majority of the tumour.  He attended the office on at least one occasion in July.  He underwent radiotherapy and chemotherapy.  The last day he worked was 2 August.  He resigned on 1 November 2010.

3.	I have been shown a letter dated 18 May 2011 by Dr Haylock, consultant in clinical oncology.  After summarising Mr McIntyre’s diagnosis and treatment the letter continues as follows:

“He has suffered the usual affects of radiotherapy and chemotherapy which includes some degree of memory loss and lethargy as well as fatigue and inability to concentrate.  He has suffered from epileptic seizures during the treatment and recently had two seizures in May 2011 requiring admission to The Countess of Chester Hospital.  He therefore needed his anti convulsant therapy to be increased and is now on 500mg twice a day of Sodium Valporate.
He has had a longstanding area of blindness as a result of the tumour affecting his brain which causes some difficulty in reading as well as some headaches.
In view of the increase in his anti convulsant drug he is much more sleepy and spends much of the afternoon asleep.
It is difficult to know exactly how things will develop over the next few months.  It is likely that there will be some long-term lethargy as a result of the radiotherapy and some long-term decrease in cognitive ability as well as some permanent visual field loss.
Ultimately the prognosis with a grade 4 tumour has to be said to be guarded and is usually measured in months rather than years, although Andrew so far, is doing extremely well.
His most recent MRI scan on 3 May 2011 shows no significant change or signs of recurrent disease.”

The Tribunal proceedings
4.	Mr McIntyre’s case in the Tribunal proceedings may be summarised as follows.  He made careful preparations for his work to be covered in the short time available to him before he had surgery.   When he returned from surgery, even though there was ongoing treatment, he did some work and attended the office, remaining in contact with Mr Mairs.   Initially he was paid and arrangements were amicable.  However in early July Mr Mairs was insisting that he should return to work on a full-time basis by 2 August.  He attempted to do so, but could not, and went off sick, working for the last time on 2 August.  He asked to work 4 days per week in the mornings, completing his hours at home after an opportunity to rest.  He produced a medical note and letter supportive of his position.  Mr Mairs refused to allow this adjustment, replying in correspondence in an unsympathetic and unhelpful way.  He stated a grievance.  Mr Mairs held no meeting, but continued to correspond in an unsympathetic way, suggesting that he might be playing a “silly, vexatious game”.  Eventually Mr Mairs informed him he would be placed on an indefinite and unpaid sabbatical.  This was the last straw; he resigned.

5.	The claim form alleges (1) constructive unfair dismissal; (2) discrimination arising from disability; (3) discrimination in failing to make reasonable adjustments; (4) failure to pay statutory sick pay.

6.	In its response form, lodged on 25 February, DFG admits that Mr McIntyre is a disabled person.  It denies the claims; says that it proposed alternative adjustments which complied with its duty to make reasonable adjustments; says that the comment about playing a “silly, vexatious game” has been taken out of context; says that he resigned in the absence of any fundamental breach; and applies for a stay.

7.	At this stage I would make one comment.  The overlap between the constructive unfair dismissal claim and the disability discrimination claim is plain and obvious.  Essentially the Claimant’s case is that he resigned and is entitled to claim constructive dismissal by reason of the very treatment which would constitute disability discrimination.

The High Court proceedings
8.	In the High Court proceedings DFG (together with Mr Mairs, another individual and various associated companies) complain that Mr McIntyre deleted various folders and files from DFG’s computer systems.  In so far as a date is given for this activity it is 2 August 2010, the last day on which the Claimant worked – but this date is not given for all the activity.  It is suggested that the Claimant may also have destroyed or disposed of hard copy documents and may have impermissibly retained copies.   Losses are alleged – the cost of instructing a computer forensic specialist, said to be £10,488; the cost of accountants, said to have been assisting DFG since October, in the sum of £22,126; and the cost of management and staff, said to exceed 200 hours valued at more than £35,000.  Claims are made for the Claimant to file an affidavit verifying the existence and whereabouts of all documents and records, delivery up of documents and damages.  Mr McIntyre is alleged to have acted in breach of contract and in breach of obligations of trust and confidence.

9.	Since DFG applied to the Tribunal for a stay Mr McIntyre has put in a defence to the High Court claim.  There is no counterclaim for wrongful dismissal.  He denies the allegations and sets out his case relating to individual files and folders.  I am told that further particulars have been exchanged; that disclosure is due to take place in October; and that a case management conference is listed for 8 November.

10.	There are to my mind some unsatisfactory features about the High Court proceedings.  (1)  If accountants were involved from October 2010 it is to say the least surprising that the first letter making any enquiry of Mr McIntyre or suggesting any wrongdoing is dated 18 February 2011.  (2)  The High Court proceedings contained claims for an affidavit, disclosure and delivery up, which could if seriously pursued have been the subject of an application for interlocutory relief which one might expect to have been supported by evidence from DFG’s accountants and computer expert.  There has been no such application; and no such evidence has yet been disclosed.  Mr Paul Gilroy QC, who appears for DFG, says that there may have been no interlocutory application because the damage was already done; but I observe that the claim for this relief was included nevertheless in the proceedings.

11.	Hitherto neither side has progressed the High Court proceedings at any great pace.  Mr Jones, who appears for Mr McIntyre, says that it has not been easy to obtain full instructions from Mr McIntyre – which is understandable, given his condition as set out in Dr Haylock’s letter.

The application and decision
12.	DFG applied for a stay by letter dated 8 March 2011.  The application was opposed by letter dated 17 March 2011.  On 27 March the Employment Judge (who may then have been considering the response rather than the subsequent correspondence) ordered a pre-hearing review to consider the application for a stay followed by a case management discussion if the stay was not granted.

13.	The decision under appeal was contained in a letter dated 5 April, by which time the Employment Judge evidently had seen correspondence.  The letter says:

“A Pre-Hearing Review is not necessary.  The Tribunal has considered the documentation provided by the parties and it appears that the Claimant’s claims for unfair dismissal and breach of contract should be stayed pending the determination of the High Court action.  However, the Tribunal does not accept that there is any overlap between the High Court action and the Claimant’s claim for disability discrimination.
The parties have a further 7 days to object to the proposed stay of the unfair dismissal and wages act claims only, with the discrimination claim proceeding.  The Pre-Hearing Review will be converted to a Case Management Discussion via telephone, which is what it should have been in the first instance.”

14.	The Employment Judge’s letter certainly constitutes an appealable decision, but it appears that she probably intended the parties, if not satisfied, to object within 7 days.  At all events DFG lodged the appeal with which I am concerned today.

Submissions
15.	On behalf of DFG Mr Gilroy submits that the Employment Judge erred in law in the following respects.

16.	Firstly, he submits that the Employment Judge erred in finding that there was no overlap between the High Court claim and the disability discrimination claim.  Both, Mr Gilroy submits, involved findings relating to credibility; and it would be impossible to decide quantum in the disability discrimination claim without knowing whether Mr McIntyre had committed fundamental breaches of contract as alleged in the High Court claim.  Secondly, he submits that the Employment Judge erred in failing to take into account the undesirability of two actions running concurrently.   Thirdly, he submits that the Employment Judge erred in failing to take into account the undesirability of separating out Mr McIntyre’s Tribunal claims which were inextricably linked.  Fourthly, he submits that the Employment Judge failed to have regard to the overriding objective.

17.	There is of course only an appeal to the Appeal Tribunal on a question of law.  Traditionally the test for the Appeal Tribunal to apply, when considering a case management decision, is whether the Employment Judge made a decision within the broad parameters of judicial discretion.  Mr Gilroy submits that the test has changed, and that the Appeal Tribunal should ask objectively whether the decision was right or wrong.  He relies on Terluk v Berezovsky [2010] EWCA Civ 1345 and Osborn & Booth v Parole Board [2010] EWCA 1409.

18.	On behalf of Mr McIntyre Mr Jones submits that the traditional test is the correct test to apply (see Carter v Credit Change Ltd [1979] ICR 908) and that the Employment Judge cannot be said to have erred in law.  He submits that there is relatively little overlap in the issues between the proceedings; that there would be obvious prejudice to the Claimant, given his prognosis, in putting off any part of his claim, since he may not live to see the result of any part of it; and that the High Court proceedings are or may be intended effectively to delay the Tribunal proceedings – viz, that they may be “stopping writs” of the kind to which the Court of Appeal referred in Carter v Credit Change (see 919B).  Mr Jones accepts that there is an overlap between the unfair dismissal and disability discrimination claims.  If anything, he says they should both have proceeded.

Conclusions
19.	I am content for the purposes of this appeal to assume in favour of Mr McIntyre that the traditional test, outlined in Carter v Credit Change, is the correct test for the Appeal Tribunal to apply.

20.	The traditional test requires the Appeal Tribunal to intervene if and only if the Employment Judge applied wrong legal principles, took into account a factor which was irrelevant in law, left out of account a factor which it was essential in law for him to consider, or reached a conclusion outside the ambit within which reasonable disagreement is possible.

21.	In my judgment the Employment Judge erred in law.  There is on any view some overlap between the disability discrimination claim and the allegations of breach of contract made in the High Court proceedings.  At the very least there is overlap when it comes to the question of remedy.  I do not see, for example, how compensation could be assessed in accordance with the Vento guidelines without knowing whether Mr McIntyre’s employment was in any event liable to be terminated for fundamental breach.  While I accept that there is less overlap than in many cases of this kind, it cannot be said that there is no overlap.

22.	There is also on any view real difficulty about separating out the disability discrimination claim from the unfair dismissal claim, which the Employment Judge does not appear to have considered.  This would involve hearing the disability discrimination claim and the High Court proceedings first (but separately from each other and without considering the appropriate order); then the balance of the Tribunal proceedings.   This is not an obvious solution and could turn out to be the worst of all possible worlds.

23.	I therefore have no doubt that the Employment Judge’s decision should be set aside.

24.	I do not, however, think it necessarily follows that the Employment Tribunal proceedings should wait behind the High Court proceedings.  In my judgment careful case management of the two sets of proceedings is now required.

25.	I am conscious of two particular factors.

26.	Firstly, there is the health of Mr McIntyre.  This is potentially a very important factor in managing the case.  If he is presently capable of giving evidence and taking part in proceedings, but this state may not long continue, then it may be very unjust to impose a stay of one set of proceedings or the other.  Careful case management may be required to bring them on soon and in a sensible order.  The general trend of the cases is to give priority to High Court proceedings, but if this is not possible within an appropriate time scale an urgent hearing of the Tribunal proceedings may be appropriate.  If the health of Mr McIntyre is in jeopardy it may be of real importance to determine most of the claims now rather than wait for a High Court trial still some distance away.

27.	Secondly, it seems to me that this is a case which will benefit from careful case management by the Regional Employment Judge (or an Employment Judge specifically delegated by him) and the Chancery Division judge in charge of the list in question.  Liaison between judges in different jurisdictions is not unusual – it often occurs, for example, in cases which involve both criminal proceedings in the Crown Court and care proceedings in a family court.  It might be possible for the two sets of proceedings to be made ready for trial and listed within a reasonable time of each other, rather than one set of proceedings being stayed pending resolution of the other.

28.	I will therefore remit the matter.  If Mr McIntyre wishes to oppose the application for the discrimination claim to be stayed, I anticipate that he will apply for the stay in respect of the unfair dismissal proceedings to be revoked (so that the Employment Judge can consider the matter in the round), filing medical evidence from Dr Haylock.  I think the matter should be heard afresh by the Regional Employment Judge or an Employment Judge selected by him.  There will be an urgent transcript of this judgment, and I will direct that the parties provide copies to the judge in charge of the Chancery list in question.  I do not know whether this judge will be the judge who takes the case management conference in November; but he is best placed to consider the matter in the first instance.