EAT grants short final stay of Tribunal proceedings pending CPS decision

Chief Constable of Gloucestershire Constabulary v Peters (14.07.10) EAT/0322/10/ZT

Mrs Peters is a serving Police Officer with over 20 years’ experience. In a road traffic accident in 2003, she suffered injuries and subsequently presented with health problems.

She brought an employment tribunal claim alleging a failure by the Chief Constable to make reasonable adjustments from 2008 onwards. A Pre-Hearing Review was listed to determine, inter alia, the issue of whether or not Mrs Peters was, at the relevant time, a disabled person within the meaning of s.1 of the Disability Discrimination Act 1995.

The Chief Constable sought an indefinite stay of those tribunal proceedings on four occasions. This was on the basis that Mrs Peters had also become the subject of a criminal investigation into allegations of having fraudulently obtained sick pay, founded upon the alleged undertaking of activities said to be inconsistent with Mrs Peters’ medical condition as represented by her. The Chief Constable wanted the tribunal proceedings to be put off until after the conclusion of any criminal trial.

No such indefinite stay had been granted, although two earlier short stays had been granted to allow for specific events to take place, such as Police interviews. On the fourth occasion that an indefinite stay was sought, no shorter stay was sought in the alternative. The Regional Employment Judge (REJ Tickle) dismissed the application on the papers, and the PHR remained due to take place on 1 September 2010. The Chief Constable appealed on an expedited basis, asking the EAT to substitute an order for an indefinite stay.

Appeal allowed
The EAT (HHJ Ansell sitting alone) allowed the appeal on the basis that REJ Tickle’s decision not to grant any form of stay at all was perverse. In HHJ Ansell’s view the issues in the criminal investigation and the tribunal claim were closely related. HHJ Ansell was further satisfied that the Chief Constable would not be able to make use in the tribunal of the evidence that had not yet been put to Mrs Peters in interview, without jeopardising the investigation. Consequently he would not be in a position properly to cross-examine Mrs Peters in the tribunal, by 1 September 2010.

Indefinite stay refused
However, HHJ Ansell also refused to substitute an indefinite stay. He granted a final stay until 31 December 2010, in order to allow the Police interviews to be concluded and to allow the CPS to make a decision as to whether or not to charge Mrs Peters:

“Although they have argued that the whole criminal prosecution may be tainted if there is to be a determination of the Tribunal issue, I am not persuaded that that risk is strong enough and it seems to me also that the delay of Police proceedings not being concluded for a year or 18 months outweighs in any event what prejudice there might be. But, in the courts we are now well used to determining civil or family issues of a serious nature before the Crown Court does get to grips with them and remarkably it does seem to me little prejudice, if at all, results.”

By 31 December 2010, the Police “will simply have to get their tackle in order”. The tribunal claim will now be listed for the early part of 2011, together with victimisation claims brought by Mrs Peters and her husband, irrespective of whether or not any criminal trial is by then due to take place.

Douglas Leach, counsel for Mrs Peters.
http://www.employmentappeals.gov.uk/Public/Upload/10_0322wwfhSBZT.doc