Lawyers representing a health service body at an employment tribunal have been accused of making untrue statements in a case derided as a ‘car crash’.
Former assistant director Clive Rennie successfully sued NHS Norfolk and Waveney Integrated Care Board for constructive dismissal at Norwich employment tribunal. But the case featured accusations of misleading the tribunal, documents not disclosed despite judge’s orders, and even a recusal application from the respondent for the removal of the tribunal panel.
The claimant’s representative said he had not seen such ‘deplorable conduct’ on the part of the respondent’s solicitors in 24 years of practice.
The solicitors, who were both junior lawyers from defendant firm Capsticks, had told the tribunal there were no drafts of an investigatory report and that none had ever existed. In fact, it was submitted by the claimant, there was a ‘perfectly polished’ final report and a ‘whole trail of correspondence’ which showed the solicitors’ statements were not correct.
The situation was described in the tribunal as ‘absurd to the extreme’ and the respondent’s solicitor-advocate was said to have spoken ‘recklessly and off the cuff without any thought to what she was saying’, giving a statement that was ‘utterly untruthful’.
The procedural disputes between the parties began on day one of the hearing, when the claimant made an application for specific disclosure of grievance reports and investigatory statements.
The solicitor-advocate for the respondent said a thorough search had been carried out and no such documents existed. The author of these reports was sitting at the back of the tribunal throughout and stayed silent during these submissions, despite knowing they were not true.
On day two, the respondent’s solicitor-advocate tried to argue the disclosure application was disproportionate and made too late. This was disputed by the claimant.
By day three, the respondent was arguing that it could not comply with the disclosure request as it had to go through and be signed off by a third-party supplier. The claimant accused the respondents of ‘thumbing their noses’ at the tribunal. The tribunal told Capsticks to find out what was going on and ordered the respondent to co-operate to ensure the hearing could continue.
The tribunal also reported there had also been an issue over the lunchtime break on day three when one of the respondent’s representatives approached a member directly. The judge made it clear that this was not acceptable and that if there was anything to say, that should be done through the clerk.
The start of day four was delayed while the respondent’s solicitor-advocate submitted that an application was being made for the tribunal to recuse itself. This accused Employment Judge Postle of ‘inappropriate conduct, tone and disparaging comments’ towards the respondent and its lawyers, which ‘crossed the line between what is tolerable and what is impermissible’.
The claimant’s representative said there was a ‘whiff of sharp practice’ about this and ‘flagrant non-compliance’ with the tribunal’s disclosure orders. He accused the defence solicitor-advocate of showing a lack of cooperation and a ‘wilful disregard of the overriding objective’. He said that at one point he was tempted to ‘take her to one side and ask her what she is doing as she is plainly breaching her duty’.
The recusal application was dismissed, and the solicitor advocate declined the judge’s invitation to say anything regarding her professional conduct.
The tribunal added that it was ‘surprised’ that the application for a recusal was made in a letter from a Capsticks partner who was not in attendance and not the advocate involved in the hearing.
