Dominic Faversham Group v McIntyre UKEAT/0290/11/JOJ

Subjects: Practice and procedure – Postponement of proceedings – Stay of proceedings – Overlapping claims

C alleged that R had directly discriminated against him on grounds of disability, had failed to make reasonable adjustments, and that he had been constructively dismissed as a result. R alleged that C had breached his contract by deleting certain of R’s files and folders prior to his resignation and brought proceedings against C in the High Court. R sought a stay of the ET proceedings pending the resolution of the High Court claim. The ET granted a stay of the unfair dismissal claim but refused a stay of the disability discrimination claim. R appealed.

Facts

C was Chief Financial Officer for R. He was diagnosed with a brain tumour and underwent major brain surgery and continuing treatment, as a consequence of which he was no longer able to work full time. R refused his request to work different and fewer hours and informed him that he was on an indefinite, unpaid sabbatical. C accordingly resigned.

In a preliminary decision the ET stayed the unfair dismissal claim but not the disability discrimination claim on the basis that the former, but not the latter, overlapped with R’s High Court claim against C for breach of contract. Medical evidence before the ET showed that C had a cancerous brain tumour and had "months rather than years" to live. R appealed the judge's decision to allow the disability discrimination claim to proceed.

Held

The EAT allowed the appeal. The question on appeal was whether the ET judge made a decision within the broad parameters of judicial discretion (see Carter v Credit Change Ltd [1979] IRLR 361) not whether the decision, objectively, was right or wrong. However, the ET had erred in law when it held that there was not an overlap between the disability discrimination and unfair dismissal claims and between the disability discrimination claims and the High Court claims such that it would be difficult to separate them out.

The ET’s order to stay the unfair dismissal claim was set aside. However, the EAT held that this did not necessarily mean that the employment tribunal proceedings should wait behind the High Court proceedings. Although High Court claims are usually given priority over ET claims, given the rapidity with which C’s health was deteriorating it was important to determine the ET claims rapidly. Secondly the Chancery Division judge could liaise with the Regional Employment Judge in order to ensure that there was careful case management. In the circumstances the EAT held that the matter should be remitted to the Regional Employment Judge to consider the matter in the round.

Comment

Note that, of all the cases apparently referred to by counsel in this case, only Carter v Credit Change concerned an appeal against an order to stay Tribunal proceedings until High Court proceedings had run its course. By contrast, the other cases concerned an appeal against a High Court judge’s decision not to adjourn a hearing at the last minute so that the Defendant could obtain professional representation (Terluck v Berzovsky[2010] EWCA Civ 1345), and an appeal by way of judicial review against a Parole Board’s decision not to hold an oral hearing when deciding whether the claimants should be recommended for release from prison (Osborn and Booth v Parole Board [2010] EWCA Civ 1409). In this case the EAT readily adopted the principles in Carter v Credit Change.

Of particular interest to practitioners will be the EAT's comments on the co-operation between judges of different jurisdictions to ensure that a case is managed properly without the need for a stay.

The full transcript is here: http://www.bailii.org/uk/cases/UKEAT/2011/0290_11_0609.html