Andreou v Lord Chancellor's Department

An appellate body should interfere only on limited grounds with a tribunal’s case-management discretion to grant or refuse an adjournment. The threshold is high, and the appellate body must not substitute its own balancing of the relevant factors.

An applicant relying on illness must prove the need for an adjournment. Being medically unfit for work does not automatically establish unfitness to attend a hearing. Where stress or anxiety is relied upon, evidence should address its nature, severity and effect on attendance. The tribunal must balance fairness to both parties, prompt determination, other litigants’ interests and the efficient use of tribunal resources.

An employee brought employment tribunal complaints alleging racial discrimination and victimisation. Shortly before a ten-day hearing, she sought an adjournment because of anxiety and stress. The tribunal allowed one week for specified medical evidence, but found the material subsequently produced inadequate. It refused a further adjournment and dismissed the applications when the employee was absent and not represented on the merits.

The Employment Appeal Tribunal set aside the dismissal as unreasonable and legally erroneous, and remitted the claims to a differently constituted tribunal. The employer appealed. The central issue was whether the Employment Appeal Tribunal had been entitled to interfere with the tribunal’s exercise of its adjournment discretion.

1. Appeal allowed unanimously. Peter Gibson LJ held that the Employment Appeal Tribunal had wrongly interfered with the employment tribunal’s case-management discretion. Arden LJ and Cresswell J agreed. The Employment Appeal Tribunal’s order was set aside, and the tribunal’s refusal of an adjournment and dismissal of the originating applications were restored.

2. An appellate body must be slow to interfere with a tribunal’s discretion on an adjournment. Intervention is confined to established grounds such as perversity, misunderstanding the facts, taking account of an irrelevant consideration or failing to consider a relevant matter. The appellate body cannot substitute the decision it would itself have made.

3. Where refusal will lead to dismissal, the tribunal must take particular care to avoid injustice. A litigant whose presence is necessary for a fair hearing and who cannot attend through no fault of their own will usually require an adjournment, consistently with article 6 of the European Convention on Human Rights. The applicant nevertheless bears the burden of proving the need for it.

4. The medical material did not address the tribunal’s crucial question: whether the employee was fit to attend and give evidence. Certification that a person is unfit for work does not automatically establish unfitness to attend a tribunal. The general practitioner merely recorded the employee’s account and a referral for psychiatric assessment. The tribunal was entitled to decline to infer that her condition was serious enough to prevent attendance.

5. The employee had received an additional week, precise directions about the required evidence and an express warning that strike-out was under consideration. Despite that opportunity, the evidence did not address the nature or prognosis of the illness, fitness to attend, or when a further hearing could occur. The tribunal neither misunderstood that evidence nor acted perversely in finding it inadequate.

6. The tribunal was entitled to balance fairness to the employee against fairness to those accused, the age of the allegations, the need for prompt adjudication, the interests of other litigants and scarce tribunal resources. No evidence established how long a further adjournment should last. Its refusal was therefore a permissible decision.

1. Court of Appeal (Civil Division): The employer’s appeal was allowed unanimously. The Employment Appeal Tribunal’s order was set aside, and the Employment Tribunal’s refusal of an adjournment and dismissal of the originating applications were restored. Permission to appeal to the House of Lords was refused.

2. Employment Appeal Tribunal: The employee’s appeal against the second tribunal decision was allowed. The dismissal was set aside and the claims were remitted for hearing by a differently constituted tribunal.

3. Employment Tribunal: After allowing one week for further medical evidence, the tribunal refused another adjournment and dismissed the originating applications. It relied on rules 4(7), 9(3) and 13(2)(e) of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 1993. Reliance on rule 4(7) was later conceded to be wrong, and reliance on rule 13(2)(e) was abandoned.