EAT PRACTICE AND PROCEDURE – Postponement or stay
Postponement or stay
The two Claimants (both serving police officers) were pursuing separate claims before the Employment Tribunal, which had not been consolidated. Claimant X’s first claim – of detriment due to making protected disclosures – was lodged in January 2015 and he had subsequently lodged three further claims, also of whistleblowing detriments. Claimant M was pursuing a claim of race discrimination. A reference to the IPCC had been made in relation to matters raised in Claimant X’s first ET claim, which also overlapped with some part of his second claim. Due to the on-going IPCC investigation and the possibility that there might be disciplinary proceedings as a result of any IPCC report, the Respondent had stated she was unable to plead to the ET claims and had sought a stay of the ET proceedings. That application had initially been heard by the ET in September 2015 and by its Order of October 2015 it had stayed those proceedings. Since then, however, there had been significant delays in the IPCC investigation and the Claimants had sought a lifting of the ET stay, an application that was heard by the ET in July 2017 but refused. The Claimants appealed.
Held: allowing the appeal and remitting the application to the ET to be heard afresh
Although the ET was exercising its case management discretion in determining whether or not the stay should be lifted, there was a presumption that a complainant was entitled to have their case litigated and determined without delay unless the Respondent to the claim could establish a good reason to displace what would otherwise be the normal course of litigation (AKJ and Ors v Commissioner of Police of the Metropolis and Ors [2014] 1 WLR 285 CA at paragraph 51 applied). In the present case there was no indication that the ET had adopted this starting point; indeed, its reasoning suggested that it had seen the burden of proof as neutral between the parties or even as being on the Claimants. Although many of the Claimants’ complaints regarding the ET’s assessment of the degree of overlap between the IPCC and the ET proceedings (which went to comparative prejudice) were not made good, the inability to be confident that the ET had started from the right place in its assessment meant its conclusion (which it acknowledged was ‘finely balanced’) was rendered unsafe. That concern as to the ET’s approach to its task was further underpinned by its apparent failure to consider the two cases (that of Claimant X on the one hand and that of Claimant M on the other) separately (although that may not have been the focus of the Claimants’ submissions below, the two cases had not been consolidated and the ET needed to consider its Order in respect of each) and also by its suggestion that there was no medical evidence to support the assertion of prejudice suffered by Claimant X when his witness statement had referred to medical advice to refrain from working etc, which had not previously been disputed by his employer.
This was not a perversity challenge and both sides acknowledged that it could not be said that only one outcome was possible. In the circumstances the appropriate course (there being no agreed position that the EAT should itself determine the issue) was to remit the question whether the stay should be continued to the ET to be determined afresh (Jafri v Lincoln College [2014] EWCA Civ 449 applied).
Citations:
[2017] UKEAT 0186 – 17 – 2010)
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601913