The EAT in the case of Gloucestershire Constabulary v Mrs Peters and Mr Peters determined that the Tribunal had erred in refusing to stay a hearing in relation to disability where the day to day activities of the employee, a service police officer, were also the subject of a police fraud investigation.

The case of the Police was that the issue of disability could not be determined at the PHR until they had completed their investigations as the results of these investigations would be relevant to determining whether or not she was disabled.

An Employment Judge has, under Rule 10, a wide discretion in relation to making an Order that proceedings be stayed pending investigation results and usually the EAT are very reluctant to interfere in this discretion.

However, Bastick v James Lane (Turf Accountants) Ltd, sets out circumstances where the EAT can interfere with this discretion ‘…it was necessary to show either that he had improperly taken into account some matter, or that he had failed to take into account a relevant matter, or that his decisions was perverse.’

Judge Ansell, at the EAT, determined that the wide discretion in this case had been incorrectly exercised.  He determined that there was a substantial overlap of issues and an early hearing has the potential to harm the continuing Police investigation.  However, the Order made was for a limited stay until the investigation was completed (not until the conclusion of any criminal prosecution).