Appeal No. UKEAT/0018/05 & UKEAT/0053/05

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 31 August 2005

 
Before
HIS HONOUR JUDGE J McMULLEN Q.C.
MR M R SIBBALD
MR R P THOMSON

 

DR ABDOLREZA AHARI	APPELLANT

 

 
(1) UNIVERSITY OF GLASGOW
(2) HCI (SCOTLAND) LTD	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

	APPEARANCES

 

 
For the Appellant	Dr A Ahari, In Person
Flat 1/R
20 Dixon Avenue
GLASGOW   G42 8ED

 
For the 1st Respondent

 

 

 
 
For the 2nd Respondent

Mr E McHugh, Solicitor
Of-
Messrs Dundas & Wilson
Solicitors	
191 West George Streeet
GLASGOW   G2 2LD

 

Mr R Mackay, Solicitor
Of-
Messrs Burness
Solicitors
242 West George Street
GLASGOW   G2 4QY

 

 

 

 

 

SUMMARY
 
PRACTICE AND PROCEDURE
 
Postponement or stay
 
Absence of party

(1) Claimant failed to comply with ET’s direction that it required medical evidence before it would consider a postponement and the ET did not err in refusing his application.
 
(2) In then dismissing the case (4 days into the hearing) ET acted within its discretion: Roberts v Skelmersdale College [2004] IRLR 69 applied

 

 

 

 

 

 

 

 

 

HIS HONOUR JUDGE McMULLEN QC:
 
1.	This case is about Employment Tribunal procedure when refusing an application for a postponement by a Claimant who did not attend, and then in dismissing his claim in his absence. The judgment represents the views of all three members who pre-read the relevant papers.  We will refer to the parties as the Claimant and the Respondents (Glasgow and HCI).
 
Introduction
2.	It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting at Glasgow, Chairman, Ms F Eccles, registered with reasons on 26 January 2005.  The Claimant represented himself there and here.  The respective Respondents were represented as now by Mr McHugh and Mr Mackay, solicitors.  The Claimant made claims under the Race Relations Act 1976 against both Respondents.  Each denied the claims.
 
The issues
3.	The essential issues as defined by the Employment Tribunal so far as are relevant to the appeal were whether to postpone a hearing, which was under way into the Claimant’s claims, on 21 January 2005 and whether to dismiss the claim when he was absent.  The underlying dispute between the parties, serious as it undoubtedly is, is not the direct focus of the appeal.
 
4.	The Employment Tribunal decided to refuse the Claimant’s application for a postponement and noted that he had not complied with its direction to produce medical evidence of his inability to attend on 21 January 2005 at the resumed hearing.  It dismissed his claim at the instance of the two Respondents.
 
The appeal
5.	The Claimant appeals against both of those decisions.  He also sought a review.  This was not refused by the Chairman under her powers under Rule 36 of the 2004 Rules and so a review took place.  In advance it was agreed to be held on the papers.  The Claimant later sought to appear and to give live evidence but for reasons given at paragraph 19 of the review judgment registered on 5 May 2005 his new request was refused by the three-person Tribunal.  At the review the Employment Tribunal declined to change its earlier judgment.
 
6.	Directions sending this appeal to a full hearing were given in Chambers by Her Honour Judge Wakefield.  At the outset of our hearing we established that the appeal should consider the two Tribunal judgments together. We also, in effect, heard evidence, not on oath, as the Claimant told his account of the events of 20 to 24 January 2005.  There was no application by the Respondents to cross-examine, which in itself would be an unusual procedure.  We will return to this passage in the proceedings.  We asked the parties how long each would need for their submissions and gave them all they required.
 
The legislation
7.	The relevant provisions relating to Tribunal procedure are contained in the 2004 Rules and Rule 27 deals with postponements as follows:-
 
“(5)	If a party fails to attend or to be represented (for the purpose of conducting the party’s case at the Hearing) at the time and place fixed for the Hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the Hearing to a later date.
 
(6)	If the tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.”
 
Rule 34 provides five gateways for a review, which we explore in para 12 below. Rule 36 deals with the powers on a review and consists of the following:-
 
“36. - (1) When a party has applied for a review and the application has not been refused after the preliminary consideration above, the decision shall be reviewed by the chairman or tribunal who made the original decision. If that is not practicable a different chairman or tribunal (as the case may be) shall be appointed by a Regional Chairman, the Vice President or the President.
 
	(2)	….
 
		(3) A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing, a new hearing must be held”
 
8.	The Tribunal directed itself by reference to those relevant provisions. 
 
The facts
9.	We can state the facts only tentatively since there has been no concluded judgment but we will take them from the Originating Application.  The first Respondent is a University engaged in running a hospital in the public sector.  The second Respondent is engaged in running hospital facilities in the private sector. The Claimant was seconded by Glasgow to HCI to perform services for it, thus, HCI falls within scope of the Race Relations Act as potentially liable to claims by the Claimant.  The Claimant put his case as follows:-
 
“The Applicant is of Azerbaijani Iranian origin and is a qualified anaesthetist with British postgraduate qualifications. On 3 February 2000, he was interviewcd for the post of Clinical Research Fellow in Anaesthesia at Glasgow University by Professor G N C Kenny. However, at this interview, Professor Kenny asked the Applicant why he had resigned from his previous employment as a Specialist Registrar in London. When advised that it was because he had been the victim of racial discrimination, Professor Kenny indicated to the Applicant that he would wish to investigate the matter further. Subsequently, however, Professor Kenny did offer the post of Clinical Research Fellow, in a letter dated 5 April 2000, subject to a 3-month probationary period. The contract was altered at a later stage by the issue of a second document changing the title to Clinical Lecturer in Anaesthesia.
 
From June 2000 onwards, the Applicant began experiencing harassment at work at the hands of Professor Kenny, Dr Dominic Ray, Dr N B Scott, Dr Lal and Dr Sutcliffe. In summary, the major difficulty being experienced was that the Applicant was prevented from fulfilling the main objectives of his contract with Glasgow University. He was required to undertake an excessive burden of clinical work and was not permitted to fulfil the research aspects of his contract which were important to him. In addition, the distribution of clinical work was inequitable, the Applicant being given an unfair burden.
 
When he attempted to make representations concerning the failure to advance research opportunities and the inequitable and excessive clinical workload he was being expected to undertake, the response received was hostile and abusive in nature. On one occasion in June 2000, when the Applicant wished to go to Glasgow University to obtain information to further his research, Dr Ray told him that he had to stay at HCI, saying “We pay you to work here. If you go, don’t come back. We will send you back to where you come from.”. On another occasion, Dr Lal tapped him on the shoulder and referred to him as the “Sultan of Iran”. On 2 other occasions in the same month, Dr Lal had called him “the Sheikh from Iran”.
 
A number of other complaints was made but that contains the gist of it.  The Claimant was eventually dismissed in 2001 and so the career of the Claimant was short. The events are said by the Claimant to begin in June 2000 but effectively owe their origins to his appointment in February 2000, some five years before the dismissal of the Claimant’s case by the Employment Tribunal in January 2005.
 
10.	Those claims by the Claimant remain un-investigated for the circumstances of the proceedings were set out by the Employment Tribunal in the background to the case, which are contained in summary in its review judgment:-
 
“1.	By unanimous decision of the Employment Tribunal dated 21 January 2005, the claim was dismissed.  The Tribunal’s written reasons for the decision to dismiss the claim are contained in a judgment dated 26 January 2005. The claim was dismissed on the joint application of the respondents after the claimant failed to attend a Hearing on 21 January 2005. The claimant had requested that the Hearing be postponed due to his ill health. The request was made on 20 January 2005 in a fax to the Tribunal. In response to his request the claimant was informed in a fax from the Tribunal that the Chairman required him to provide a soul and conscience certificate confirming inter alia that his medical condition prevented him from attending the Hearing on 21 January 2005. The fax was sent by the Tribunal to the claimant at around 14.40 hours on 20 January 2005. The claimant failed to provide the Tribunal with a soul and conscience certificate before the Hearing on 21 January 2005. The claimant failed to provide the Tribunal with an explanation as to why he was unable to obtain a soul and conscience certificate before the Hearing on 21 January 2005. When the cased called on 21 January 2005 there was no appearance or representation on behalf of the claimant. The claimant’s application for a postponement of the Hearing was refused. On joint application, the respondents sought dismissal of the proceedings. The application for dismissal was granted.
 
2.	By letter dated 21 January 2005, the claimant was informed of the Tribunal’s decision to dismiss the claim. His attention was drawn to the terms of Rule 34 of the Rules of Procedure 2004 detailing the circumstances in which a party may apply for a decision to be reviewed. By letter dated 21 January 2005, the claimant wrote to the Tribunal as follows;
 
“I acknowledge receipt of a fax and a telephone message on my answering machine at 21:30, today. I shall write to you in fuller detail.”.
 
By letter dated 23 January 2005, the claimant wrote to the Tribunal requesting that it review its decision to dismiss the proceedings. The claimant stated he was devastated to know that his case had been dismissed in his absence. He stated;
 
“I would like to bring to your attention that due to illness I was unable to attend the hearing, to give evidence, and to represent myself on 20 and 21 January 2005. I shall outline the nature of the illness below. At the time my main concern was the disabling condition that was troubling me. Following your fax, I am now aware of the instructions of the Chairman regarding her requirements. Therefore, I will contact my Doctor on the first working day this week, and meet with him at the earliest opportunity to fulfil the Chairman’s requirements, as indicated in your recent letter.”
 
3.	The claimant described his medical condition on 20 and 21 January 2005 as “two episodes of sudden dizziness progressing to vertigo, nausea and vomiting, loss of balance and inability to walk, feeling of becoming incontinent, and loud tinnitus in my left ear”. He described the symptoms as being most severe for a period of approximately one hour but continuing for a number of hours causing severe tiredness as a result of which he fell into a deep sleep for several hours. The claimant stated that when the symptoms were at their most severe he had to remain still and could not physically go and meet with his doctor to obtain a soul and conscience certificate. He undertook to obtain a certificate at the first possible opportunity. He apologised for the inconvenience caused by his medical condition but questioned whether there was anything he could have done to alleviate or prevent it. He stated that his illness came without warning and that the only thing that he could do was to ask his wife to contact the Tribunal to confirm his condition. The claimant stated that although his present condition was the most serious he had ever experienced he remained as determined as ever to continue with his case on the dates previously fixed by the Tribunal.
 
4.	By letter dated 24 January 2005, the claimant provided the Tribunal with a soul and conscience certificate dated 24 January 2005 from his General Practitioner, Dr Daniel McGhee of Townshead Health Centre. The certificate is in the following terms;
 
“I write to certify that Dr Abdolreza Ahari was UNFIT to attend an Employment Tribunal on 20th and 21st January because of the severity and intensity of an episode of Tinnitus and Dizziness which he has experienced from time to time, lasting from a few hours to a few days. This has now cleared and he is now fit to resume attendance”.”
 
11.	In full and cogent reasoning the Employment Tribunal explained that it accepted the joint submissions of the two Respondents and did not accept as conceivable the Claimant’s written evidence, relating to what happened on 20 and 21 January 2001.  It also took a sceptical view of the medical evidence contained in the certificate we have cited above and it must be borne in mind that the parties in this case are all engaged in the provision of medical services.
 
12.	The Tribunal on review considered four of the five gateways by which a review may be instituted under Rule 34(3) and declined to accede to the Claimant’s request under any of them. In short, the Tribunal decided that there was no administrative error on the part of Tribunal staff (see review judgment para 20).  The decision was indeed made in the absence of a party; that of course was the basis of the judgment being made, but the Tribunal decided that its instruction had not been met that the Claimant provide a certificate by the start of the hearing on 21 January.  He had been given an opportunity to provide information to support his previous application for a postponement on 20 January, which had been granted, and, therefore, the Tribunal did not consider it appropriate to review its decision on the basis of what was plainly the case that the Claimant was absent.  It went into great detail of the circumstances surrounding the account given by the Claimant of why he was absent and the reason why he failed to comply with the Tribunal’s direction.
 
13.	The Tribunal then considered whether new evidence had become available which would make it just to review the decision.  This turned upon the certificate of the general practitioner which it found to be of limited value.  This was because the Claimant had recovered by the time he visited his practitioner on 24 January and the practitioner would therefore have taken the Claimant’s account as being the description of the circumstances of his illness on 21 January.  The Tribunal concluded that this was not material which could not have been obtained prior to the hearing and refused the request under that head.
 
14.	The Tribunal then reconsidered the portmanteau ground of the interests of justice.  In refusing the application on that basis, it considered the longevity of the case, the requirement for parties to take all reasonable steps the longer a case got, and the background of the Claimant’s earlier application for adjournments, which were in remarkably similar circumstances causing at least one of the long delays in this case.
 
15.	The Tribunal then turned to the Respondents’ application that the claim be dismissed at that stage.  The Tribunal gave its reasons in two places.  In the substantive judgment it said as follows:-
 
“11. Having refused the application for a postponement of the Hearing, the Tribunal considered the respondents’ joint application for dismissal of the proceedings. The Tribunal had regard to the overriding objective of the Rules of Procedure to deal with cases justly. This includes, so far as practicable, to deal with cases expeditiously and fairly.
 
12. The inevitable prejudice to the claimant of dismissing the claim has to be balanced against the prejudice to the respondents of adjourning the Hearing to a later date. The case is already more than three and a half years old having been presented in May 2001. On the last occasion when the claimant obtained a Postponement of a Hearing, it was a number of months before he next contacted the Tribunal to confirm that he was in a position to proceed. The claimant has made serious allegations against the respondents. A number of the allegations concern the professional integrity of the respondents’ employees. The respondents are entitled to have the complaints against them dealt with within a reasonable period of time. A number of the respondents’ witnesses are medical consultants. They are required to make arrangements, at some considerable expense, for locum cover to allow them to attend the Tribunal to give evidence. The cost and inconvenience caused to the respondents by the claimant failing to attend a Hearing and failing to provide any clear indication as to when he will be able to proceed with his case is considerable.
 
13. The Tribunal took into account that the claimant has sought a postponement on grounds of his ill health. He has failed however to provide information in the form of a soul and conscience certificate to justify his inability to attend the Hearing to conclude his evidence. From the information before it, the Tribunal was not satisfied that the claimant had provided an adequate explanation for his failure to attend the Hearing or that a further adjournment of the proceedings was justifiable. There was nothing in the claimant’s letter of 21 January 2005 to suggest that he was making any attempt to obtain a soul and conscience certificate. The claimant cannot expect to be allowed to have Hearings postponed and the case adjourned without providing the Tribunal with sufficient evidence as to why he is unable to attend and when he will be able to proceed with the case.
 
14. In the above circumstances, and having had regard to the information in its possession which was made available to it by parties, the Tribunal decided that it was appropriate to dismiss the proceedings in terms of Rule 27(5) of the Rules of Procedure.”
 
That was amplified in the review judgment where the Tribunal said this:-
 
“As referred to in the judgment dismissing the case, the claimant has made serious allegations against the respondents.  These have been outstanding for a period of years.  The respondents are entitled to have the complaints made against them dealt with in a reasonable period of time. They are entitled to say that the claimant has been given ample opportunity to present his case and that by failing to attend a Hearing and comply with the requirements of the Tribunal he should not be allowed to prolong the case any further.  There will be significant prejudice caused to the respondents by allowing the case to be reinstated.  This is not the first occasion on which they have made arrangements at some considerable expense to attend the Tribunal only to find that the Hearing has not taken place due to the claimant’s failure to attend.  A Hearing scheduled to start in December 2003 had to be postponed in very similar circumstances to those in January 2005 when the claimant failed to attend on the basis that he was too unwell.  If the case is reinstated it will be number of months before it can next come to a Hearing.  Further delays cause inevitable prejudice to a party seeking to defend claims about events which took place a number of years ago.  The Tribunal appreciates that the issues raised in the case are of considerable concern to the claimant.  By refusing to reinstate the case, the Tribunal recognises that he will be prejudiced by losing the opportunity to conclude his claim.  The Tribunal also recognises that their decision to grant the respondents’ application to dismiss the case may well be viewed as a harsh one.  It was a difficult decision but the Tribunal must have regard to the principle that the interest of justice applies to both sides of a case.  The Tribunal having considered the circumstances of this case and the parties’ submissions was not satisfied that it is in the interests of justice to revoke its earlier decision to dismiss the claim.”
 
The Claimant’s case
16.	The Claimant submitted that the Tribunal had erred in law.  It has to be said that we reacted flexibly to that central submission for what it in fact was a plea for us to consider the Claimant’s own account given live before us, of his reasons for his conduct on 20 to 24 January in failing to attend at the Tribunal and seeking to comply with the Tribunal’s orders.
 
17.	In respect of the most important matter which he developed, and about which we asked questions, that is, the Claimant not seeing the fax from the Tribunal sent on 20 January until late on 21 January, it will be recalled that the Tribunal found his account inconceivable.  For what it is worth, having heard the Claimant tell us his account personally and without even testing cross-examination, we would hold that there was nothing in what he told us which would cause us to displace the finding by the Tribunal as to conceivability or at least, if this is the correct test, to indicate that that finding by the Tribunal was impermissible on the material before it.
 
18.	The central complaint of the Claimant is that the priorities of an Employment Tribunal include costs, time and justice and that these apply equally to the parties. Although criticisms were made of the Employment Tribunal Chairman, the Claimant accepts that the relevant judgments in this case were made by the three members of the Tribunal.  The Claimant contended that the costs would fall on both sides, since although the costs of the Respondent in an aborted hearing and again requiring locum cover for a consultant to attend at the Employment Tribunal is not small, nor were the Claimant’s losses.  The length of time in this case was a matter which affected adversely both of the parties and some of the delay has not been as a result of any conduct of the parties.
 
19.	The certificate of the general practitioner was rejected by the Tribunal, or at least given limited value, because of the Respondents’ submissions upon it.  The Claimant contended that he should have been asked by the Tribunal to give further clarification and it was wrong to refuse his application, notwithstanding his written agreement to the written procedure in advance.  The Claimant pointed out that he was not legally qualified and the purpose of the hearing is to give the parties an opportunity to give oral evidence and for a judicial body to make an appropriate decision.  The Claimant had no legal representation, had a chronic illness and had two episodes of vertigo.  As to his rights under the European Convention on Human Rights, Article 6, it is contended that the Claimant was denied a full opportunity to present his claim.  The case arose out of seriously damaging accusations made against his professional conduct and his integrity, although the essence of the case was about the denial by the Respondents, it is said, for him to properly have a hearing of his grievance and of disciplinary matters.  The Tribunal erred in failing to take account of the fact that the Claimant was ill and that he acted as soon as he could in accordance with the Tribunal’s directions.
 
The Respondents’ case
21.	In submissions made on behalf of the first Respondent and adopted expressly by the second Respondent, it was contended that the criticism of the Tribunal by the Claimant came nowhere near the high standard required for a decision to be overturned on the ground of perversity, particularly when the decisions in question are issues of discretion.  The discretion here is very wide.  There is no clear indication in the Claimant’s material as to how the attack on the ground of perversity is focussed upon the judgment.  As to the review, the review was fair and thorough and the Tribunal was entitled to take the critical view that it did on seeing the general practitioner’s certificate for the purposes of the review and of hearing the Claimant’s account of the events of 20 to 24 January.
 
The legal principles
22.	The legal principles to be applied in a case such as this appear to emerge from the following authorities.  A judgment of an Employment Tribunal should not be overturned unless a clear misdirection has happened (see the Lord President’s judgment in Melon v Hector Powe Limited [1980] IRLR 80) at page 82 as follows:-
 
“The law is clear that where it cannot be shown that the tribunal of original jurisdiction has either misdirected itself in law, entertained the wrong issue, or proceeded upon a misapprehension or misconstruction of the evidence, or taken into account matters which were irrelevant to its decision, or has reached a decision so extravagant that no reasonable tribunal properly directing itself on the law could have arrived at, then its decision is not open to successful attack. It is of no consequence that the appellate tribunal or court would itself have reached a different conclusion on the evidence. If there is evidence to support the decision of the tribunal of first instance then in the absence of misdirection in law--which includes the tribunal’s selection of the wrong question to answer--that is an end of the matter.”

23.	The standard for perversity is set high (see Yeboah v Crofton [2002] IRLR 634 following Stewart v Cleveland Guest (Engineering) Limited [1994] IRLR 440 at 443).  The test for determining whether a Tribunal has erred in the exercise of its discretion has been set out by the Court of Appeal in Roberts v Skelmersdale College [2004] IRLR 69, which we drew to the attention of the parties at the hearing.  The principles there set out by Mummery LJ with whom Jonathan Parker and Scott Baker LJJ agreed, are set out as follows:-
 
“14. A number of points may be observed about rule 9(3). First, it confers on employment tribunals a very wide discretion to deal with cases (which are not uncommon) of when a party fails to attend or to be represented at the time and place which has been fixed. Secondly, if the absent party is the applicant, as was the case here, the tribunal may, in its discretion, do one of a number of things: (i) it may adjourn the hearing to a later date; (ii) it may dismiss the application; or (iii) it may dispose of the application in some other way than adjourning it or dismissing it.
 
15. Thirdly, the rule does not impose on employment tribunals a duty of their own motion to investigate the case that is before them, nor does it impose a duty on them to be satisfied that, on the merits, the respondent to a case has established a good defence to the claim of the absent applicant.  For example, in an unfair dismissal case where, as here, it is common ground that there has been dismissal, the burden of establishing the reason for the dismissal is on the respondent/employer. But rule 9(3) does not require the employment tribunal to hear evidence from the respondent in order to determine for itself substantively the reason for the dismissal, or to satisfy itself as to whether, if the dismissal was for a potentially fair reason, it was fair and reasonable to dismiss the applicant/employee for that reason.
 
16. In the exercise of its discretion, the tribunal would be entitled to require the respondent to produce evidence, but the rule does not impose any duty on the tribunal to follow that course. The rule requires that, before exercising its discretion whether to adjourn the matter to a later date, to dismiss the application or to dispose of it in the absence of a party, the tribunal must first consider a number of matters. Those matters all refer to documents that would be before the tribunal, such as the originating application of the applicant, the notice of appearance of the respondent, any written representations which have been made to the tribunal by the applicant, or any written answer furnished to the tribunal under rule 4(3).”
 
24.	Now, written reasons are not required in every case but as a matter of fact they were given in this case.  As to a claim under Article 6 of ECHR, if the contention is that the Rules of the Employment Tribunal do not conform with it, there is no free-standing right in the Employment Tribunal.  In our judgment parties can agree for a hearing to be conducted on paper before an Employment Tribunal on a review, and there is no breach.  If the Rules of the Tribunal, which have allowed for the power to be exercised to dismiss a case when a party is absent, are not compatible with the Convention, that is not a matter which the Claimant may raise as a direct right before us as a declaration of incompatibility.
 
25.	Finally, when a substantive case is the subject of a reasoned judgment on review, it is usually appropriate to consider both judgments together, particularly when there is an appeal against both.
 
Conclusions
26.	We prefer the argument of the Respondents and have decided that the appeal should be dismissed.  There is no serious challenge as a matter of law on the grounds of perversity to the decision of the Tribunal whether on substance or on review.  The standard set in the authorities which we have cited is one which must require an overwhelming case to be made on the facts.  What is said here is that the Claimant disagreed with the judgment of the Tribunal about the events of 20 to 24 January or, at least in respect of the substantive decision, the events of 20 and 21 January.
 
27.	There was material upon which the Tribunal could form its judgment as to whether a postponement should be allowed or refused, and if it was to be allowed, the material which would be required to be adduced by the Claimant for that purpose.  The Tribunal was entitled to take a view on review about the way in which the Claimant had responded to its fax of 20 January 2005, and given that there was material upon which it could form such a view, it cannot be impugned on appeal.  
 
28.	Compounding this approach is the approach which must be adopted following Roberts v Skelmersdale when the issue of dismissal of the case occurs.  Given that we can find no error in the exercise of the Tribunal’s discretion on the postponement, the Tribunal having looked at all relevant factors including the history of the matter and decided that the case should go ahead, the next logical issue was dismissal on the application of the Respondents.  The Tribunal, as we have shown from the citation in its very careful reasoning of first and second hearings, plainly had in mind all the relevant factors.  It cannot be said that the discretion, which is very wide as Mummery LJ says, to dismiss the proceedings rather than, for example, to adjourn or dispose of them in another way, fell in the category of being manifestly wrong or having considered matters which were inappropriate to take into account.
 
29.	We bear in mind that in Roberts a majority of the EAT reversed a judgment of the Employment Tribunal dismissing the proceedings in circumstances similar to ours, although it has to be said that in the Roberts case there was no medical material as there is in this case.  Nevertheless, the judgment of the Employment Tribunal was restored by the Court of Appeal and we take Mummery LJ’s approach as invoking a degree of caution by the EAT when seeking to deal with an application on appeal to overturn the exercise of discretion as here.
 
30.	The Tribunal fully considered all of the factors which would be relevant in disposal.  Now under the 2004 Rules slightly different considerations apply to what material must be considered.  It is a wider class of material than was available under the earlier Rules under review in Roberts.  It must be borne in mind this Tribunal had listened to some four days of evidence and had adjourned before hearing what the Tribunal described as the equivalent of re-examination of the Claimant himself of his own evidence, in order to give him more time.  The Tribunal balanced the length of time the proceedings had taken, the allegations which were hanging over the parties, the serious allegations made by the Claimant against a number of consultants and the history of the proceedings.  We cannot say that any factor which it ought to have considered was left out of account or that it took account of an irrelevant factor.  Its judgment to dismiss cannot be said to be perverse nor the exercise of a discretion which is manifestly incorrect in principle.  In our judgment the Tribunal was correct to make the decisions which it did.
 
31.	We appreciate that our judgment will be a great disappointment to Dr Ahari who has been engaged in this litigation now for over four years.  We do not know whether this will be an end to the dispute but we would very much urge Dr Ahari to consider all those matters which the Employment Tribunal, on these two occasions, set out when exercising its discretion as indicating reasons why the case should go no further.  He of course has not had a full trial of the issues which he ventilated and no-one knows what the outcome would have been. The matter is now at an end of its lengthy road and we hope Dr Ahari will be able to put the matter behind him and get on with his career and that those medical and other practitioners engaged on behalf of the Respondents in defending these cases will now have the security of knowing that there is finality in this litigation at last.
 
32.	We would very much like to thank Dr Ahari for his courteous and measured approach in addressing us today and in his written arguments and in drawing our attention to all of the relevant documents before he opened the case.  We of course are also grateful to both of the solicitors for their help in their written and oral submissions today.  The appeal is dismissed.