Riley v The Crown Prosecution Service [2013] EWCA Civ 951

Subjects: Ill-Health – postponements – strike out of claims

Facts

C was a solicitor in the CPS. She raised grievances for bullying and harassment. In August 2008, Ms Riley went off sick. She was still off sick by May 2011. The Occupational Health report advised that C would not be fit to return to work but recommended that management should address her concerns. In 2009 C issued her first ET claim alleging race discrimination, disability discrimination and whistleblowing. In April 2010 C issued her second ET claim objecting to the re-employment of an employee the subject of her grievance. A psychiatric report prepared for C concluded that her problems were a direct result of her on- going legal battle. Occupational Health also advised that they could not envisage a change in her condition in the “foreseeable future”. In September 2010, C was dismissed after a displinary investigation (in absentia) for making false allegations namely her Grievance. C issued her third and fourth ET claims respectively alleging, inter alia, unfair dismissal.

The Final hearing was listed for 20 days to commence on 3 May 2011. C, shortly before the hearing applied for a postponement with medical evidence to support that she was “mentally and physically unfit at the present time to attend the court hearing”. The Tribunal considered at a subsequent hearing whether C's claims should be struck out for, amongst other reasons, the fact that it would no longer be possible to have a fair hearing, pursuant to Rule 18(7)(f). Expert testimony was given as to C's health. The medical evidence could not say with any certainty that C would recover sufficiently to participate in the proceedings and on balance C was unlikely to do so before the expiry of 2 years. The Employment Tribunal therefore struck out C's claim on the basis that (1) there was no prognosis of when C would be in a position to be well enough to take part in proceedings (2) the balance of prejudice to either party made a fair trial not possible. C appealed.

Held

The EAT upheld the Tribunals findings but granted permission for C to appeal to the Court of Appeal due to the “interesting question” as to whether the courts are to apply the Wednesdbury test of unreasonableness or the fairness test when considering whether to strike out a claim. The question was resolved in the intervening period before C's appeal was due to be heard. In O’Cathail v Transport for London [2013] EWCA Civ 21, the Court of Appeal affirmed the correct approach as the Wednesdbury test. As a result, a Tribunal’s decision could only be questioned if there had been an error of legal principle in the approach, or perversity in the outcome. In light of the decision in O’cathail, the Court of Appel dismissed the appeal. It was held that if the doctors could not give any realistic prognosis of sufficient improvement within a reasonable time, and the case itself dealt with matters that that were already in the distant past, striking out the claim is an option available to the Tribunal.

Comment

The case shows that Tribunals have a very wide discretion in managing claims. The exercise of their discretion will be very difficult to appeal unless and until it is arguable that the discretion convened was exercised in a way that makes the decision perverse.

Claimant practitioners should especially note that Occupational Health / Medical evidence supporting a Claimant's ill health may not always lead to a favourable result for them. Doctors have tended in recent years to shy away from giving concrete time estimates for recovery. If it is truly unforeseeable when C will recover there is a real risk that she will be scoring an own goal for both employer and Respondent. The fact that the employer / Respondent caused the illness will not be justification for postponing litigation indefintely until C believes he is well enough to engage. The prejudice to R will be considered and the overriding consideration for postponing or striking out will be whether a fair trial is possible and in a reasonable period of time (Article 6 of the ECHR).