Toofanny v Parkside Health NHS Trust

Article 6 requires a prompt hearing conducted under fair rules for all parties. Case management must take account of the respondent’s interests as well as those of the applicant. A request to postpone proceedings to obtain representation does not require acceptance where the applicant had a lawful opportunity to secure representation and showed no sign of doing so. Remission is unnecessary where the tribunal is capable of acting impartially; a bare possibility of bias is insufficient.

Mr Toofanny brought discrimination proceedings before an Employment Tribunal. The tribunal made an interlocutory order listing the case for directions and a merits hearing. The Employment Appeal Tribunal dismissed his appeal against that order.

He applied to the Court of Appeal for permission to appeal, challenging factual findings, the timing of the directions hearing, correspondence said to create prejudice, the refusal to postpone proceedings so that he could obtain legal representation, and the refusal to remit the matter to another tribunal. He relied on Article 6.

Lord Justice Sedley refused the application. The applicant was absent and unrepresented, having already obtained one adjournment. The court declined to adjourn again. The proposed grounds disclosed no arguable basis for an appeal, and it was unnecessary to consider the additional difficulty that permission would have been required for an appeal out of time.

1. The Employment Tribunal was entitled, and required, to progress the discrimination proceedings with proper regard to the interests of both parties. The respondent was also entitled to a prompt hearing. The factual findings criticised by the applicant were too trivial to support an appeal.
2. The applicant’s letters to the tribunal were extremely polite and gave him no reasonable basis to fear that the tribunal had become prejudiced against him. The possibility of prejudice therefore supplied no ground for intervention.
3. The refusal to postpone the Employment Appeal Tribunal proceedings so that the applicant could obtain legal representation did not breach Article 6(1). The procedural dates gave him every lawful opportunity to secure representation, but he had shown no sign of doing so.
4. Remission to another tribunal was neither necessary nor appropriate. The tribunal seised of the case was legally capable of handling it impartially, and the asserted possibility of bias was untenable.

The formal order was: application refused. The court expressed the hope that, if the listed Employment Tribunal hearing dates had been lost, a fresh hearing date would be fixed promptly.

1. Court of Appeal (Civil Division): refused the application for permission to appeal from the Employment Appeal Tribunal.
2. Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s interlocutory case-management order.
3. Employment Tribunal: directed that the discrimination case proceed to a directions hearing and then to a full hearing on the merits.