Labour & European Law Review Weekly Issue 291 18 October 2012
Tribunals sometimes hold pre-hearing reviews (PHRs) to clarify issues or review certain aspects of a case before the main hearing. In Firouzian v Metroline Travel Ltd, the Employment Appeal Tribunal (EAT) held that there was no need to postpone a PHR even though the claimant was suffering from depression and awaiting criminal trial as there was no overlap between the issues to be addressed at the two hearings and he did not have to be present at the PHR.
Mr Firouzian, a bus driver, was accused of causing death by dangerous driving in September 2010 when the bus he was driving ran over and killed someone. The accident was investigated by the police and his employer dealt with it as a conduct issue.
He then lodged a series of tribunal claims for direct and indirect disability and race discrimination and a failure to make reasonable adjustments in relation to the way in which his employer had conducted their investigation.
On 25 July, the issue as to whether or not he was disabled was listed for a PHR on 21 November 2011. In a letter dated 8 November, however, Mr Firouzian said he was concerned that, as the crown court case against him had been delayed until April 2012, he might incriminate himself if he had to give evidence in a tribunal before it was heard.
The tribunal judge refused his request because the only issue to be decided at the November hearing was whether he was disabled or not. As there was no link between the subject matter of the criminal trial and that question, the judge said the hearing should go ahead. However, another employment judge agreed that the hearing should be adjourned and re-listed it for 30 May as there were other issues as well as that of his disability to be decided.
The criminal trial was then postponed until June 2012, and Mr Firouzian applied in March for the employment proceedings to be adjourned from 30 May until some date after 11 June.
That application was refused and Mr Firouzian appealed on the basis of new medical evidence in the form of a letter dated 23 March from his GP. This said that, as he was suffering from depression and receiving counselling, “consideration must be given to his mental health…it would seem very unfair to expect him to defend himself in the employment tribunal in the 2 weeks leading up to the criminal case".
However, the EAT dismissed his appeal, holding that the tribunal was entitled to make the decision to go ahead with the PHR.
It might be different, said the EAT, if the hearing before the tribunal in May required Mr Firouzian to give evidence as opposed to his representative appearing on his behalf; and although some evidence was likely to be put forward, it certainly would not overlap with the impending criminal case.
In dismissing the appeal, the EAT rejected earlier concerns raised by Mr Firouzian and the Crown Court that pushing on with the PHR before the criminal trial would pose a risk to his right to silence or of self-incrimination in the forthcoming criminal case.
This is a fact specific case. If there had been an overlap in the evidence to be given at the PHR and the criminal trial, there would have been a risk to Mr Firouzian’s right to silence and/or of self-incrimination and thus the case for postponing the PHR would have been much stronger. The fact that he did not have to give evidence was also a factor in the decision and, had his fitness to give evidence been impaired badly, the argument for a postponement would, again, have been stronger.