Then, after referring to the case of BUPA Care Homes ( CFC Homes ) Ltd v Muscolino [2006] ICR 1329 EAT, the ET stated:
Although referring to the argument that the starting point must be that the Claimants were entitled to have their claim litigated without delay (paragraph 13), the ET did not explain whether or not it accepted that premise. It instead went on to set out the factors for and against the continuation of the stay in terms of what might be said was the respective balance of prejudice (see paragraphs 16 and 17).
By analogy with the approach adopted in the case of North Yorkshire Police v Ashurst UKEAT/1280/95, the ET (at paragraph 18) reminded itself that there was a public interest in the fair resolution of the issues in the ET proceedings, the IPCC investigation and in any possible misconduct proceedings arising out of that investigation; fairness needed to be ensured for all parties.
The ET then set out its conclusion at paragraph 19:
On that basis, the stay was continued until 28 February 2018.
The Relevant Legal Principles
It is common ground that the ET has the power to grant (or lift) a stay of proceedings pursuant to its general case management powers under Rule 29, Schedule 1, of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ("the ET Rules"). In exercising that power, the ET is obliged to seek to give effect to the overriding objective at Rule 2 ET Rules . That said, an ET's exercise of its case management powers is a matter of judicial discretion; it can only be challenged where there is an error of legal principle in the approach taken, on the basis that the ET failed to have regard to all relevant considerations or took into account irrelevant considerations, or reached a conclusion properly to be described as perverse (see Mummery LJ at paragraph 44, O'Cathail v Transport for London [2013] ICR 614 CA).
As for the approach to be adopted when determining whether proceedings before the ET should be stayed, the starting point must be that a complainant is entitled to have their case litigated without delay unless the Respondent to the claim establishes a good reason to displace what might otherwise be seen as the normal course of litigation. As was observed in the case of AKJ and Ors & AJA and Ors v Commissioner of Police of the Metropolis and Ors [2014] 1 WLR 285 CA:
And see, to like effect, paragraphs 28 and 29, BUPA Care Homes ( CFC Homes ) Ltd v Muscolino [2006] ICR 1329 EAT per Elias J (as he then was), and Gloucestershire Constabulary v Peters & Peters UKEAT/0322/10, HHJ Ansell citing the principle identified by Neill LJ, in ex parte Fayed [1992] BCC 524, at page 531E.
The Appeal
The Claimants' appeal has been pursued on three main grounds:
The Respondent resisted the appeal, relying on the reasons given by the ET.
Submissions
The Claimants' Case
The Claimants observed that the IPCC investigation has been protracted, with time estimates for its progression and conclusion repeatedly extended; neither Claimant has any confidence in the IPCC process and they have both opposed the grant of a continuation of the stay of their ET claims, disputing the degree of overlap and prejudice to the Respondent if the ET proceedings were permitted to proceed. Even if the IPCC report was finalised by the end of February 2018 - and the Claimants have no confidence that will be done - the decision whether or not to take disciplinary proceedings against any serving officer may take time and, if the decision is not to do so, the IPCC may then direct that such proceedings are taken and that direction may be the subject of challenge, allowing for further substantial delay, if the Respondent's case for a stay is accepted.
All that said, the Claimants acknowledged that as the decision to continue the stay was made in exercise of the ET's discretion, it could only be challenged on the limited bases identified in O'Cathail v TfL . There was, however, nothing in the ET's Reasons to indicate it had approached the task from the standpoint that the Claimants' right to litigate their claims should prevail unless the Respondent was able to establish a good reason why the ET should depart from that normal process. Rather, the reasoning at paragraphs 10, 11 and 16 to 17 indicated only that the ET weighed the various factors identified by the parties. Indeed, if anything, the reference at paragraph 11 suggests that the ET saw the onus as being on the Claimants to establish a reason for lifting the stay. The starting point was significant because this was a case in which the ET acknowledged the respective factors were finely balanced.
Turning to the second basis of challenge and the factors considered by the ET, at paragraph 16.1, the ET gave weight to the concern that the Respondent was unable to plead to the Claimants' allegations. That was founded upon the Respondent's submission that she had to remain neutral in order to avoid abuse of process arguments being raised by officers who might subsequently face misconduct proceedings. There were, however, only three officers who could still be disciplined by the Respondent after the IPCC reported. They were the only officers still serving within this police force who are still under investigation. Moreover, the Claimants did not accept that the issues raised by their ET claims gave rise to the prejudice alleged. As regards Claimant X's claims under section 47B ERA 1996 , the ET would not be required to determine whether the content of these alleged protected disclosures was accurate or not; the question was whether the disclosure was, in the reasonable belief of Claimant X, made in the public interest, intended to show one or more of the matters listed in section 43B. Equally, the Respondent did not have to plead as to whether the allegations were true or not; she simply had to admit or deny whether the communications relied on by her did or did not meet the statutory criteria for qualifying as protected disclosures.
As for the detriments, of which the Claimants complain (X in his protected disclosure complaint, M in the race discrimination case), the Respondent could plead to Officer M's race discrimination claim without giving rise to any risk in so doing that a future misconduct process could be derailed by an abuse of process contention; there was no relevant officer who could be facing such a process and the assertion of prejudice was simply misplaced in his case. As regards Officer X's claims, the Respondent could plead to the issues raised by the third and fourth claims in their entirety, without any risk of the asserted prejudice arising. The Respondent could also plead to the vast majority of the issues raised in the second claim, save for a relatively limited part of one of the four detriments relied upon. It was, however, accepted that, in theory at least, the asserted prejudice could arise in relation to the detriment alleged in the first claim. The ET had failed to assess the extent of the prejudice alleged, simply proceeding on the basis that the Respondent was more generally unable to advance a positive or negative case in relation to the Claimants' allegations. Much of the ET's concern in this regard appeared to have been based on its earlier October 2015 ruling given, significantly, before the IPCC terms of reference were available, hence the similarity of text between paragraphs 16 and 19 of the current decision and the earlier ruling in the October 2015 decision.
Moreover, the ET erred in failing to appreciate the relevant distinctions between the present proceedings and the cases of North Yorkshire Police v Rose and of North Yorkshire Police v Ashurst . In identifying parallels between the present case and Rose and Ashurst , it was apparent that the ET approached this matter at a level of high generality. Whilst it might always be claimed that there was a public interest in a fair resolution of both ET proceedings and whatever other legal or disciplinary process is relied on in support of a stay, that said little about whether a stay should be granted and also for how long in a particular case. Here the IPCC - the body charged by Parliament with investigating conduct allegations in respect of police officers, and in maintaining public confidence in that regard - had stated it did not consider its investigation being prejudiced by the ET claims proceeding. The ET's conclusion in this case, in terms of the balance of public interest, was also contradicted by its own recognition that the stay should not last beyond 28 February 2018, albeit the Respondent had been saying that prejudice continued to the end of any potential misconduct proceedings.
Finally, the ET's reasoning failed to demonstrate that it had regard to the prejudice suffered by Claimant X. At paragraph 17.4, the ET referred to an absence of medical evidence, but Claimant X's witness statement attested to the prejudice he suffered in terms of the impact of these proceedings on his health and family; his sickness absences had been supported by medical certificates and the counselling he had referred to had been provided by the Respondent itself. There had been no earlier dispute by the Respondent in this regard (albeit Claimant X's witness statement had been served only shortly before the hearing).
The Respondent's Case
By way of preliminary observation, the Respondent noted the appeal was not pursued on a perversity basis; it concerned an exercise of judicial discretion, which could only be subject to interference by the EAT if a wrong approach was taken of a matter of law, or if the ET took into account that which was irrelevant or failed to take into account that which was relevant.
Turning to the individual grounds, the Respondent contended there is nothing in the first ground of appeal. The ET plainly proceeded on the basis that, if the Respondent had not satisfied it that " the balance of prejudice weighs in favour of the continuation of the stay for a limited further period ", it would not have continued the stay (see paragraph 19). Accepting that it was unclear what the ET was saying at paragraph 11, the Respondent did not agree the ET was there suggesting the burden was on the Claimants; that was apparent from paragraph 19.
As for the second ground, on the question of prejudice, the ET had carried out the appropriate balancing exercise as explained in paragraphs 16 and 17 of its Judgment. The IPCC had a statutory role to ensure misconduct is looked into and no criminal or disciplinary proceedings could be brought in relation to any matter subject to an IPCC investigation without special certification, unless a report on that investigation had been submitted (see paragraph 20, Schedule 3, Police Reform Act 2002 ). The approach the Respondent had adopted - consistent with that of other police authorities in similar circumstances - was that she could not take a view as to the position to be adopted in the ET proceedings until after the IPCC had reported; any admissions or denials she made in the ET could be challenged as showing pre-judgment in any subsequent decision as to whether or not disciplinary proceedings should follow. The fact that the prejudice involved an element of speculation was only because it was not known what the IPCC would report, but that did not lessen the need for the Respondent to maintain neutrality until that point and it was apparent that there were also difficulties for potential witnesses in the proceedings. As for the suggestion that the ET should have carried out separate scrutiny of the Claimants' cases, that was not the way the matter was argued below: although not formally consolidated, the Claimants' arguments had always been put on a collective basis and there was a clear overlap in the background evidence relevant to both. Similarly, there was no suggestion that Claimant X's third and fourth claims should be separated off; something that could not, in any event, be done in any sensible or proportionate way.
The ET had previously had regard to the relevant statutory regime involving the IPCC when making its original decision to stay the proceedings given its October 2015 Judgment. In considering whether it was appropriate to continue the stay, the ET had accepted there was a substantial overlap between the ET claims and the matters under investigation by the IPCC and it had been referred to the IPCC's terms of reference (see paragraphs 14, 16.4 and 19), albeit that the existence of an overlap had not then been seriously contested on the Claimant's own case. That arose in respect of the entire first claim brought by Claimant X and in relation to at least a part of the second claim.
As for the question of prejudice suffered by Claimant X, all the ET had been referring to (at paragraph 17.4) was the entirely fair observation the Respondent had made that no medical evidence had been provided to corroborate what Claimant X had said. As to the ET's reference to the Ashurst case, it was not confusing the facts of that case with the present proceedings, but was simply acknowledging the public interest that existed in both the IPCC and ET processes.
Discussion and Conclusions
The ET was here concerned with an application to lift a stay in the proceedings before it that had been in place since 1 October 2015 (wrongly recorded as "October 2016" in the first paragraph of the Judgment now under appeal). It was required to adopt as its starting point the presumption that the Claimants had a right to have their cases determined without delay unless there was a good reason to displace what might otherwise be seen as the normal course of litigation (see AJA and Ors v Commissioner of Police of the Metropolis and Ors above). Notwithstanding that general principle, in these cases there had been (on any view) a significant delay with nothing substantively having occurred from the first ET claim in January 2015. That might not be wrong - there might have been good reason to displace what would otherwise be the presumption as to how the litigation should proceed - but the question raised by this appeal was whether what would otherwise be a matter of case management discretion for the ET was rendered unsafe because it erred in law or in its approach.
A focus of the Claimants' complaints on appeal has been on the ET's assessment of comparative prejudice, specifically in relation to its view as to the degree of overlap between the IPCC investigation, the ET proceedings and any potential disciplinary proceedings. That fed into the ET's conclusion on prejudice suffered by the Respondent.
I am not convinced that this was a point put in the same way or with the same degree of force before the ET. Moreover, it is apparent that a number of the complaints made by the Claimants on the appeal do not withstand scrutiny when assessed against the ET's reasoning. Thus, it is apparent that the ET did have regard to the fact that only three of the seven officers served with notice of misconduct by the IPCC were still serving with the Respondent (see paragraph 8); a relevant factor that then expressly features in the matters identified by the ET as favouring the lifting of the stay (see paragraph 17.3). Although not expressly stated by the ET, reading its Judgment as a whole (as I am obliged to do), I would also not accept that it failed to have regard to the fact that disciplinary proceedings could not be pursued against officers no longer serving with the Respondent. Equally, although the ET wrongly said " The only change since the Stay Order was made is the increase in the delay " (paragraph 19) - that was wrong because it was significant that the IPCC had since provided its terms of reference which enabled the ET to properly assess the true degree of overlap as it was not able to before - I am unable to agree that the ET then failed to have regard to the relevant material that was before it at this second hearing; indeed, it was expressly referred to the IPCC terms of reference by the Respondent (see paragraph 14) and that is what I have concluded it had in mind when it made its assessment of overlap at paragraph 16.4.
I am also not persuaded that the ET wrongly considered that these proceedings were on all fours with those in Ashurst or Rose . Its reference to the Ashurst case at paragraph 18 was clearly in terms of how the public interest was to be seen in each set of proceedings (relevantly, those before the IPCC, those before the ET and the disciplinary proceedings); I cannot see that the ET did anything more.
Where, however, I am persuaded the Claimants are right in their concerns is at a much more fundamental level; that is, as to the ET's starting point. Going back to the beginning of this discussion, the ET was obliged to start from the premise that the Claimants had a right to have their claims before it litigated and determined without delay. The Respondent says I can take it from paragraph 19 that is really the approach the ET adopted: finding the Respondent had discharged the burden upon it satisfied the ET that it would be severely prejudiced if the stay were lifted. I do not, however, think I can read paragraph 19 as going that far. The ET's finding is there expressed in neutral terms, without any reference to any burden of proof. The reasoning suggests that the ET saw the burden as neutral between the parties. There are, moreover, other aspects of the ET's reasoning which seem to suggest that, if anything, it saw the burden as being on the Claimants to show why the stay should be lifted; see its observation at paragraph 11, which is hard to read in any other way.
The Respondent says it is apparent that the ET, in any event, asked the correct questions. Neither side has suggested, however, that this was a decision that could only have gone one way. As the ET acknowledged, " the situation is finely balanced " (paragraph 19). In context, while the starting point objection might seem like a matter of nuance, that is not unimportant. In those circumstances, I am unable to be satisfied that the conclusion reached can be seen as safe, given that I cannot be sure that the ET started in the right place.
There are further points of concern which may also arise from this most basic error in approach. First, in the ET's apparent failure to consider the cases of both Claimants separately. I appreciate that this may not have been how the Claimants' arguments were presented below, but their claims had not been consolidated and the ET needed to make its decision as to whether or not the stay should be continued on each case before it. Secondly, the ET apparently gave less significance to the prejudice suffered by Claimant X because there was " no medical evidence ", but that was not so: the medical evidence was referred to in Claimant X's statement. He had attested to being signed off due to stress at work and to receiving counselling and there had been no suggestion within his workplace that that was not the case; indeed, it seems that the Respondent had provided the counselling services itself. I do not say that the evidence of prejudice to Claimant X meant the ET was bound to find that the stay should be lifted or even that it should have concluded that proceedings in Claimant M's case should have been permitted to proceed, even if the stay otherwise continued. These are, however, illustrations of an approach adopted by the ET that suggests that it was not starting its assessment from the right place and may thus have placed an unwarranted burden on the Claimants.
Thus absent certainty as to the ET's starting point, I cannot be satisfied that the conclusion reached was safe and that, I conclude, must mean that this matter returns to the ET for fresh consideration. I appreciate that introduces further unfortunate delay but, given that there is no one answer (as both parties have recognised) and no agreement that I should undertake the assessment myself, this must be the appropriate course.
I would hope that the matter can be expedited before the ET and I can see no reason why it could not be considered by any Employment Judge in the discretion of the Regional Employment Judge (not least as Employment Judge Lewzey has since retired).