Gloucestershire Constabulary v Peters & Anor

An appellate tribunal should interfere with a case-management decision only where the discretion was exercised on an improper basis, relevant matters were ignored, or the decision was perverse. That restraint does not prevent intervention where the decision-maker materially misunderstands the overlap between concurrent proceedings or fails to assess substantial prejudice.

Where employment proceedings and a criminal investigation depend on substantially the same factual material, a limited stay may be required to protect the fairness and effectiveness of both processes. The stay should be proportionate and time-limited. It need not continue until the conclusion of a possible criminal prosecution where that would create disproportionate and uncertain delay.

Mrs Peters brought disability discrimination proceedings against Gloucestershire Constabulary. The claim concerned whether injuries allegedly suffered after a road traffic accident had substantially impaired her normal day-to-day activities, including for the purposes of an alleged failure to make reasonable adjustments.

The Constabulary was conducting an extensive investigation into whether Mrs Peters had dishonestly claimed sickness pay or other benefits. The investigation examined many of the same activities and factual matters relevant to disability. Earlier Employment Judges had granted short stays. Employment Judge Tickle refused a further stay in letters dated 10 June and 7 July 2010.

The central issue was whether the refusal properly balanced delay against the prejudice caused by requiring the Constabulary to defend the disability issue before its investigation and any Crown Prosecution Service decision were complete.

1. Appeal allowed. The Employment Judge’s refusal to continue the stay was set aside and replaced by a final limited stay until 31 December 2010.
2. The decision was a case-management decision engaging a very wide discretion under rule 10. The EAT should be extremely reluctant to interfere. Intervention is nevertheless justified where the tribunal takes an irrelevant matter into account, fails to consider a relevant matter, or reaches a perverse decision. The reviewing tribunal may assess whether a matter was legally relevant without usurping the first-instance tribunal’s function. Those principles were drawn from Bastick v James Lane (Turf Accountants) Ltd and Teinaz v Wandsworth [2002] IRLR 721.
3. The Employment Judge had proceeded on the mistaken premise that there was no substantial overlap between the criminal investigation and the disability proceedings. The underlying factual matrix was remarkably similar. The Constabulary required further time to complete interviews and investigations, and the Crown Prosecution Service was entitled to withhold investigative material until the inquiry and prosecution decision were sufficiently advanced.
4. Fairness required consideration of the risk that proceeding with the disability hearing would place the Constabulary at a substantial disadvantage and could harm the continuing investigation. The principles concerning prejudice in concurrent civil and criminal proceedings, including the need for a real risk of serious prejudice leading to injustice, supported a further stay: Farrell v Stenning; Secretary of State Trade and Industry v Crane & Anors; ex parte Fayed [1992] BCC 524; and Jefferson Ltd v Bhetcha [1979] 2 All ER 1108.
5. An indefinite stay until the end of any criminal proceedings was disproportionate and involved an unknown period of delay. A stay until 31 December 2010 allowed the investigation and prosecution decision to progress while preserving an early hearing of the disability issue.

• Employment Tribunal: Employment Judge Tickle refused a further stay in letters dated 10 June and 7 July 2010.
• Employment Appeal Tribunal: The refusal was replaced by an order granting a final limited stay until 31 December 2010.