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Appeal against the refusal by the ET to give relief from the sanction of striking out the claimant’s claim. Appeal dismissed.
The claimant made a claim under the DDA. After several attempts to agree upon a medical expert to report upon the day to day effects of the claimant's alleged disability, he failed to attend the appointment he had agreed to go to. He claimed he was not well enough. When ordered to produce evidence of this (eventually by means of an unless order) he did not do so, and his claim stood struck out. He sought to appeal the subsequent refusal of his application for relief from sanction.
The EAT dismissed the appeal. The ET was entitled to conclude that the claimant had put forward no medical evidence to explain why he had not attended the appointment. It had not been shown that the EJ acted in any error of law applying the test in Neary.
Appeal No. UKEAT/0074/12/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
On 29 May 2012
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT) (SITTING ALONE)
MR E CROCE (APPELLANT)
CENTREWEST LONDON (BUSES) LTD & OTHERS (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR E CROCE (The Appellant in Person)
MS BIANCA MEZZA (Interpreter)
For the Respondent
MR DAVID McILROY (of Counsel)
Moorhead James LLP
3 Dorset Rise
PRACTICE AND PROCEDURE – Striking-out/dismissal
After several attempts to agree upon a medical expert to report upon the day to day effects of Claimant's alleged disability, C failed to attend an appointment he had agreed to go to. He claimed he was not well enough. When ordered to produce evidence of this (eventually by means of an unless order) he did not do so, and his claim stood struck out. He sought to appeal the subsequent refusal of his application for relief from sanction. It was held that the Employment Judge could not be shown to be in error of law.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1. This is an appeal in effect against a decision that the case stood automatically stuck out on 26 April 2011 in form against the refusal on 1 July 2011 by Judge Mahoney at the Watford Employment Tribunal to allow an application for relief from sanction.
2. The Claimant is Italian, he worked as a bus driver, he has very little English and has made his submissions through an interpreter for whose services I am very grateful. In addition, a lot of the letters he has written and his written submissions show difficulty with English and I will give them as generous an interpretation as I can.
3. The background to the appeal is this; the Claimant claimed in 2009 that he suffered from disability within the Disability Discrimination Act. Although I do not have the ET1 in my papers it appears that the dispute which gave rise to the claim in particular focused upon whether the Claimant had been entitled to a key to use the facility's service disabled toilet.
4. Whatever the precise scope of the claim, the question of disability was in dispute. The Claimant apparently suffers from chronic Hepatitis C and from cirrhosis of the liver. The question is what effect that has on his day to day activities. To answer that question the Tribunal required to have the evidence of a medical expert.
5. In a case management decision made in May 2010 the Tribunal proposed that a single medical expert should be jointly instructed. On 1 July 2010 the name of one was agreed but he later withdrew having been approached privately by the Claimant. In December 2010 further names were advanced by the Respondent for the Claimant to choose. Since by 11 January 2011 the Claimant had not accepted any a further case management discussion on 21 January 2011 ordered that on or before 4 February the Respondent was to identify a consultant physician who would act as an expert and to arrange an appointment for the Claimant with that expert.
6. On 4 February 2011, Dr Glynn was identified as the expert and an appointment arranged for 25 February. An Italian interpreter was arranged and the Respondent was to pay. By an email sent in the very early morning just before 3.00 am on 24 February the Claimant told the Tribunal that he was unable to attend that appointment. He said, in words which evidence his lack of English:
"The Claimant are sick and in pain and for the reasons of the distance relate at the mobility problem of the Claimant and because need make injection chemotherapy. For this reasons and other reasons the Claimant ask to the Employment Tribunals to review the order and to make in consideration for avoid the risk of the health worsering and the life of the Claimant in the status of stress and depression caused from the disability of the Claimant and caused from this Employment Tribunal matter."
7. In the light of that, employment Judge Heal directed by letter dated 17 March 2011 that the Claimant should provide written evidence to the Tribunal and to the Respondent from his GP confirming that he was too ill to attend the appointment on 25 February 2011. That was to be done by 24 March. On 21 March, the Claimant wrote to the Tribunal saying he could not provide that evidence because he had lost the letter he had from the GP. On 28 March, employment Judge Heal made an unless order requiring the Claimant to send to the Respondent and the Tribunal by 7 April 2011 first, medical evidence from his GP confirming that he was too ill to attend the medical appointment on 25 February and secondly, an explanation why the claim for disability discrimination should not be struck out because he had failed to attend the medical appointment. The Claimant was unable to provide the material from the general practitioner because the general practitioner would only record that that was what the Claimant said he was too unfit to do and would not himself certify it.
8. The claim was thus treated as struck out because of the failure to comply with the order of Judge Heal and the Claimant sought relief from that sanction. The Judge, in considering relief from sanction had a choice; he could grant relief or he could refuse it. A choice such as that must be exercised judicially with regard to fairness and to justice and in accordance with relevance and reason. The principles which apply have been clarified by the Governing Body of St Albans Girls' School v Neary  EWCA Civ 1190 and 1214 reported 2010 IRLR 124. The Court of Appeal held in words very similar to those I have just used that the duty of the Judge is to decide the case rationally and not capriciously and to make his decision in accordance with the purpose of the relevant legislation taking all relevant factors or circumstances into account. He must avoid taking irrelevant factors into account
9. Provided the Judge has met those requirements, his judgment should not be impugned merely because a Court of Appeal would or might have reached a different conclusion. There may be two correct answers or at least two answers which are not so incorrect that they can be appealed against. The facts and circumstances are case sensitive. Judge Mahoney thought that in addition he should approach the case as suggested in Maresca v Motor Insurance Repair Research Centre  All ER 254. He thought that approach had been confirmed by the Court of Appeal in Neary. As a result he went through each of the factors set out in Maresca which derive from the Civil Rules CPR 3.9. It needs to be said very clearly to Tribunal judges that this was a misconception on Judge Mahoney's part. Neary did not confirm that that approach must be followed. It described it as a useful checklist but it is not an obligatory requirement before the discretion can be exercised. It is entirely appropriate for Tribunal judges to deal with the central issues; they do not have to refer to each and every one of the factors identified in CPR 3.9.
10. The judge before whom the case came on the sift considered the appeal which Mr Croce had advanced. He was asking that the appeal tribunal should in effect exercise mercy and grant him relief. It might have appeared from what he said that he had indeed been too ill to attend the medical examination on 25 February and it was apparently suggested to Judge McMullen QC on an oral application that there was fresh evidence to that effect. The evidence which it was thought might not have been considered by the judge was a letter which the Claimant got from his GP, Dr Latif. That certificate is dated 22 February 2011. It identifies the Claimant by name and address and then says that he was suffering from,
"Hepatitis C under Royal Free Hospital, suffers from back pain. He says he is unable to attend for his assessment by Public Transport."
11. The Judge having been asked by this Tribunal whether he saw that letter and, if so, did he ask whether it amounted to a good explanation and if not, why not responded that he had seen the letter, he did consider whether it constituted a good explanation but considered that it merely recorded what the Claimant had told his GP and was not evidence that he was unable to attend his assessment by Public Transport.
12. It is plain that the Claimant agrees that the letter does not provide sufficient evidence for he is very concerned about the way in which Dr Latif has acted. In his submissions he has told me that Dr Latif will have to answer for his letter elsewhere, that he did not really know why Dr Latif acted as he did. He thought that the letter indicated that Dr Latif did not wish to see him, the Claimant, and was responsible for causing him further personal injury and it is plain that he has a number of complaints about the way Dr Latif failed to support his position.
13. This Tribunal cannot make any decisions about the rights and wrongs of the way that Dr Latif acted. So it would be wrong for me to pass any comment one way or the other about that. The question for this court is whether the Employment Judge, given the information which Dr Latif did in fact provide, however badly it may have been provided, was entitled to come to the conclusion he did. He could not imagine that the position medically was different from that which Dr Latif was saying; he would have no basis to do that. Accordingly he was entitled to conclude that the Claimant had put forward no evidence medically to explain why he did not attend the appointment with Dr Glynn. Accordingly, the Judge decided as he did not to give relief from sanction. The only issues which were permitted to proceed to this hearing by Judge McMullen were as follows in the words of paragraph 5 of his order of 1 February 2012:
"The appeal is limited to the Claimant's Counsel's draft as follows;
a) This is appeal is brought by the Claimant, Mr Croce, from the decision of employment Judge Mahoney sitting at Watford, striking out Mr Croce's claims. The decision was made without an oral hearing and was sent to the parties on 26 April 2011. Mr Croce sought relief from that sanction/review by letter dated 1 May 2011 which made reference to "new evidence" in the form of a letter from Mr Croce's GP dated 22 February 2011, three days before the date fixed for a medical appointment; the subject of a direction from the Tribunal.
b) As clarified at a Rule 3(1) hearing on 1 February 2011, Mr Croce's complaint is that although his failure to attend the appointment was intentional … that there was a good explanation for that contrary to the finding of paragraph 38.4. The explanation is he contends, set out in the letter from his GP dated 22 February 2011."
14. It should be noted that this appeal hearing is considering no other issue. I do not, for instance, have to nor can I in the light of that decision by His Honour Judge McMullen consider any of the issues which might arise if the case of Blockbuster v James  IRLR 630 were to be referred to. That, no doubt, has had appropriate consideration earlier in the appeal history but anyone reading this decision on appeal must bear that in mind.
15. Given those as the issues and having read the response of the Judge to the questions he was asked, having heard from the Claimant and listened to his complaints that he was let down by his doctor, I have to focus in the light of those questions on what the Employment Judge did. It has not been shown that he acted in any error of law applying the test in Neary and accordingly this appeal must be dismissed. It is only left for me to say once again how grateful I am for the services of the interpreter who has acted alongside the Claimant today in helping him make his representations in person.