Teinaz v Wandsworth London Borough Council

When a litigant whose presence is needed for a fair hearing cannot attend through no fault of their own, an adjournment will usually be required, even if inconvenient. The applicant must provide credible evidence of the inability to attend. A tribunal must not treat compliance with qualified medical advice not to attend as a deliberate choice, or use the resulting absence to reinforce doubts about the illness. An appellate tribunal must not re-exercise the adjournment discretion, but it must determine whether an irrelevant consideration was taken into account and whether that error materially affected the decision.

Dr Yunez Teinaz brought claims of racial discrimination and unfair dismissal against Wandsworth. The Employment Tribunal refused his application to adjourn a seven-day hearing on medical grounds, proceeded in his absence and dismissed his claims. The Employment Appeal Tribunal allowed his appeal, holding that the Tribunal had wrongly treated his non-attendance as a deliberate choice and had taken that matter into account. Wandsworth appealed to the Court of Appeal, arguing that the Employment Appeal Tribunal had re-exercised the Tribunal's discretion and that the disputed consideration was relevant. The central issue was whether the refusal of the adjournment involved an error of law which vitiated the decision.

Appeal dismissed unanimously. Lord Justice Peter Gibson gave the leading judgment. Lady Justice Arden agreed and added observations on appellate review and practical case management. Mr Justice Buckley agreed with both judgments.

1. An appellate tribunal must not substitute its own view or re-balance the factors in a discretionary decision. It may intervene on recognised legal grounds, including legal error, disregard of principle, misunderstanding of facts, failure to exercise the discretion, or reliance on an irrelevant consideration. This was consistent with Bastick v James Lane Ltd [1979] ICR 778, Carter v Credit Change Ltd 1980 1 All.E.R 252 and G v G [1985] 1 WLR 647.
2. The appellate tribunal determines whether a consideration was relevant. If an irrelevant consideration was taken into account, the discretion is invalidated unless the error was harmless and played no significant role. The appellate tribunal must nevertheless show considerable deference to the lower tribunal's balancing exercise.
3. Where a litigant needed for a fair trial cannot attend through no fault of their own, an adjournment will usually be necessary. The applicant bears the onus of showing that the inability to attend is genuine. Where a qualified medical practitioner has advised the litigant not to attend and the litigant follows that advice, it is unfair to characterise the absence as a deliberate choice or to treat it as reinforcing doubts about the medical evidence. The principle in Maxwell v Keun [1928] 1 KB 645 supported that approach.
4. The Employment Tribunal's paragraph 24(7) made precisely that impermissible inference. The medical note was not alleged to be forged, the doctor's qualifications were not challenged, and the note gave unequivocal advice not to attend. The paragraph was not peripheral because the Tribunal expressly weighed it in the balance, and it was impossible to say that the decision would necessarily have been the same without it. The Employment Appeal Tribunal therefore corrected an error of law rather than re-exercising the discretion. Its treatment of Retarded Children's Aids Society v Day [1978] ICR 437 was not undermined; that decision was not in point.
5. Article 6 of the European Convention on Human Rights reinforced the need for care where refusal of an adjournment would effectively defeat the claim. Tribunals may, where appropriate, seek further medical evidence, facilitate access to the doctor or allow a short adjournment to resolve doubts. The Employment Appeal Tribunal's order setting aside the decision and remitting the claim to a fresh tribunal therefore stood.

1. Court of Appeal [2002] EWCA Civ 1040: dismissed Wandsworth's appeal and upheld the Employment Appeal Tribunal's decision to set aside the Employment Tribunal's decision and remit the claims to a fresh tribunal.
2. Employment Appeal Tribunal: allowed Dr Teinaz's appeal, set aside the refusal of the adjournment and the merits decision, and remitted the matter to a fresh tribunal.
3. Employment Tribunal: refused the medical adjournment application, proceeded in Dr Teinaz's absence and dismissed his claims. A later review application was also rejected.