In this article Caroline Jennings will address two EAT decisions – one addressing an application for a stay and a more recent case addressing an application to postpone.

There are occasionally instances where Employment Tribunal proceedings relate to a criminal matter. One example was considered in the recent case of Firouzian v MetroLine Travel (UKEAT/0233/12/CEA) in which the Claimant had been arrested for causing death by dangerous driving, an act that was committed whilst driving a bus in the course of his employment. The Respondent dismissed him for gross misconduct and he claimed unfair dismissal and disability discrimination.

The Claimant in Firouzian was said to suffer from severe depression. A pre-hearing review was listed to determine whether or not he was disabled for the purposes of the Equality Act 2010. The Claimant made an application that the pre-hearing review be postponed until after conclusion of the criminal trial. He feared that if he had to give evidence in Tribunal it may harm his criminal case. Although it is right that an individual subject to criminal proceedings has the right not to disclose evidence which may assist them in an employment matter if to do so would result in self-incrimination, the EAT held that there was no overlap between the criminal proceedings and the determination of whether or not the Claimant was disabled. As such, it was held that the pre-hearing review could go ahead without causing prejudice to the Claimant.

In the earlier case of Gloucestershire Constabulary v Peters (UKEAT/0322/10/ZT), the Claimant had taken lengthy periods of sickness absence during which time she made claims for sick pay. The Claimant claimed that her injuries amounted to a disability and she presented her claim on the basis that her employer had failed to make reasonable adjustments to accommodate her disability. Suspicions had grown that her claims for sick pay were dishonest and police investigations commenced into allegations of fraud. The Employment Tribunal granted two stays but an indefinite stay had been refused on the basis that further delay would be prejudicial to the Claimant. The EAT held that the Employment Tribunal should grant applications for a stay where the issues in a case overlap with a criminal investigation. It held that it was not proper for the Crown Prosecution Service to be forced to submit its evidence prematurely, as to do so could prejudice any further criminal investigation. It also noted that the employer was unable to fully defend the Claimant's claim until all of the evidence had been collected. The EAT did comment, however, that it would not be appropriate for such a stay to be of indeterminate length.

Accordingly, it appears that Employment Tribunals should try to balance the interests of the Crown Prosecution Service and the individual in determining whether or not there should be any delay in Tribunal proceedings. As such, if a hearing has the potential to impede a criminal investigation or an individual’s ability to defend himself, it is likely that the Employment Tribunal will postpone proceedings or grant a stay.