Teinaz v Wandsworth London Borough Council

An appellate tribunal may interfere with an adjournment decision where the tribunal took an irrelevant consideration into account. Determining relevance is part of appellate review and does not involve substituting a fresh exercise of discretion. The error invalidates the decision unless it played no significant role and caused no prejudice.

A litigant whose presence is necessary for a fair trial, but who cannot attend through no fault of their own, will usually require an adjournment. The applicant must establish a genuine need. Where a litigant follows medical advice to stay away, their absence cannot itself justify an adverse inference that non-attendance was voluntary or medically unjustified. Particular care is required where refusal will effectively dispose of the claim. Doubts about medical evidence may be addressed through further enquiries, although the appropriate course depends on the circumstances.

Dr Teinaz, a former part-time environmental health officer employed by Wandsworth London Borough Council, brought claims of racial discrimination and unfair dismissal. Before the employment tribunal hearing, his representative sought an adjournment supported by a doctor's note advising him to avoid work and court attendance because of severe stress.

The tribunal refused the adjournment. Among its reasons, it treated Dr Teinaz's absence as a deliberate choice which reinforced its doubts about his medical condition. It then heard the council's evidence and dismissed his claims in his absence. A subsequent review application, supported by fuller medical evidence, was unsuccessful.

The Employment Appeal Tribunal allowed Dr Teinaz's appeal, set aside the adjournment decision and dismissal, and remitted the claims to a fresh tribunal. The council appealed with permission. The central issues were whether the adverse inference from non-attendance was a permissible consideration and whether the appeal tribunal had exceeded the proper limits of reviewing a discretionary decision.

1. The appeal was dismissed unanimously. Peter Gibson LJ's reasons were expressly adopted by Arden LJ and Buckley J. Buckley J also agreed with Arden LJ's additional observations. The Employment Appeal Tribunal's order setting aside the adjournment decision and dismissal, and remitting the claims to a fresh tribunal, therefore stood.

2. Per Peter Gibson LJ, an adjournment is a case-management discretion with which an appellate body may interfere only on limited grounds. Taking an impermissible consideration into account is one such ground. Determining whether a consideration was permissible is an essential appellate function, rather than a re-exercise of the discretion. The principles discussed in Bastick v James Lane Ltd and Carter v Credit Change Ltd supported that conclusion.

3. A litigant whose presence is required for a fair trial, but who cannot attend through no fault of their own, will usually have to receive an adjournment. The applicant bears the burden of establishing a genuine need. Particular care is required where refusal would effectively defeat the proceedings, consistently with the approach expressed in Maxwell v Keun.

4. The tribunal could properly regard deliberate non-attendance as material. It could not fairly treat compliance with medical advice to avoid the hearing as a voluntary absence counting against an adjournment. The doctor's note unequivocally advised absence because of severe stress, and there was no contrary medical evidence or challenge to the doctor's qualifications or the note's authenticity. Its brevity and departure from a standard British sick certificate did not justify the inference drawn. Earlier attendance at work contrary to medical advice did not establish that the advice was mistaken.

5. The chairman's earlier letter had deferred the application to the full tribunal without identifying inadequacy in the medical note. It therefore did not give notice that amplification was required. Scrutinising the resulting adverse inference was legitimate appellate review. Retarded Children's Aids Society v Day, concerning an appeal tribunal searching the reasons for a point of law, was distinguishable.

6. Per Arden LJ, relevance is determined without deference to the inferior tribunal, ordinarily on the material before it. An irrelevant consideration invalidates the discretion unless it played no significant role and caused no prejudice. The challenged consideration expressly entered the tribunal's balance and could not be treated as harmless. Peter Gibson LJ declined to entertain the council's fourth argument because it fell outside permission and was absent from the grounds, but also rejected its substance.

7. Further medical evidence, access to the advising doctor or a short adjournment for enquiries may offer practical solutions. Their omission does not necessarily constitute an error of law. Arden LJ observed that article 6 of the European Convention on Human Rights added nothing to the argument here, but reinforced the need for care.

• Court of Appeal: In [2002] EWCA Civ 1040 , dismissed the council's appeal unanimously and upheld the Employment Appeal Tribunal's order. Permission had been granted by Pill LJ after refusal by the Employment Appeal Tribunal.
• Employment Appeal Tribunal: On 21 February 2002, allowed Dr Teinaz's appeal, set aside the refusal of an adjournment and dismissal of his claims, and remitted the matter to a fresh tribunal.
• Employment Tribunal: Refused an adjournment and dismissed the claims in Dr Teinaz's absence by a decision promulgated on 19 June 2000. A subsequent review application, supported by fuller medical evidence and oral evidence, was rejected by a decision promulgated on 21 November 2000.