Dr M Tattersall v Mersey and West Lancashire Teaching Hospitals NHS Trust (formerly Southport & Ormskirk Hospital NHS Trust)
[2024] EAT 24
Dr S Bi v E-ACT
28 March 2023
[2023] EAT 43
Employment Appeal Tribunal
Someone's case was thrown out for not giving all their medical records. They appealed saying they have autism, but the court said even with that, they still needed to provide the records for a fair trial and the original decision was correct.
Key Facts
- •Claimant (Dr. BI) brought claims of unlawful detriment and victimisation against E-ACT.
- •ET upheld some claims, dismissing others. Remedy stage required disclosure of claimant's medical records.
- •Unless order issued for disclosure; claimant failed to comply, leading to dismissal of claims.
- •Claimant applied to set aside the unless order and for reconsideration, citing a new autism diagnosis.
- •ET refused both applications; claimant appealed.
- •Appeals concerned the ET's refusal to hold oral hearings and the substantive decisions.
Legal Principles
Overriding objective of ET Rules 2013: to deal with cases fairly and justly.
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, rule 2
Duty to make adjustments for vulnerable parties in ET proceedings, considering factors like disability.
Presidential Guidance: Vulnerable Parties and Witnesses in Employment Tribunal Proceedings
Rule 38(2) ET Rules 2013: allows applications to set aside unless orders; ET can determine on written representations unless hearing requested.
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, rule 38(2)
Rule 72(1) ET Rules 2013: sets out procedure for reconsideration applications; hearing not necessary if no reasonable prospect of decision being varied or revoked.
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, rule 72(1)
Test for setting aside unless orders under rule 38(2): interests of justice; factors include reason for default, seriousness, prejudice to other party, possibility of fair trial.
Thind v Salvesen Logistics Ltd UKEAT/0487/09
Interests of justice in reconsideration applications are to be assessed broadly, considering all relevant circumstances.
Thind v Salvesen Logistics Ltd UKEAT/0487/09, Polyclear Ltd v Wezowicz [2022] ICR 175 EAT
Unless orders should be proportionate and not punitive; should not deprive a party of a properly pleaded claim capable of fair litigation.
Wentworth-Wood v Maritime Transport Ltd UKEAT/0316/15, Ijomah v Nottinghamshire Healthcare NHS Foundation Trust UKEAT/0289/19, Mohammed v Guy’s and St Thomas’ NHS Foundation Trust [2023] EAT 16
Appellate tribunal must determine whether a fair procedure was followed, not just review the reasonableness of the decision-maker's judgment.
R (Osborn) v Parole Board [2014] AC 111 HL
Even with reasonable accommodations for mental ill-health, interests of all parties must be considered.
J v K [2019] EWCA Civ 5
Outcomes
Appeals and cross-appeal dismissed.
ET did not err in considering applications on papers; new evidence of autism did not show prejudice from lack of hearing. ET's decision to not set aside unless order was justified; medical records relevant beyond psychiatric injury claim; claimant's non-compliance prejudiced respondent, preventing fair trial. ET correctly followed procedure for reconsideration; no reasonable prospect of varying earlier decision; new evidence did not outweigh the need for full disclosure.