Harrold v North Bristol NHS Trust

The refusal of an adjournment by an employment tribunal is a discretionary case-management decision. An appellate court may intervene only for an error of law, such as reliance on an irrelevant factor or failure to give substantial weight to a relevant factor.

The overriding objective requires a fair and proportionate hearing, with parties given a proper opportunity to present their cases. Equal footing does not require an unrepresented party to receive legal representation or an adjournment to obtain it. Appellate courts must also respect factual findings supported by material evidence and will not rehear the facts.

An Employment Tribunal in Bristol unanimously rejected claims under section 1(1)(a) and section 2 of the Race Relations Act 1976 and held that the applicant’s dismissal was fair. The Employment Appeal Tribunal refused a review application, principally concerning the Tribunal’s refusal to adjourn the hearing so that the applicant could obtain representation. Permission to appeal was initially refused on paper, but an oral hearing followed. The Court of Appeal considered whether the adjournment decision disclosed an error of law and whether the Tribunal’s factual findings could be reopened.

Application refused. The proposed appeal had no reasonable prospect of success.

1. Adjournment discretion. Refusing an adjournment was an exercise of judicial discretion. An appellate court may interfere only where the lower tribunal erred in law, including by taking into account a factor which it ought not to have considered or by leaving out of account a factor to which it should have given substantial weight.
2. Overriding objective. Rule 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 required the Tribunal to deal with the case justly. The relevant considerations included equal footing, proportionality, expeditious and fair disposal, and saving expense.
3. Unrepresented party. Equal footing did not require the Tribunal to secure legal representation for an unrepresented party or to adjourn the case so that representation could be obtained. It required a proper opportunity to present the case and a fair hearing.
4. Application to the facts. The Tribunal was entitled to consider that the hearing was more than halfway through, that the proceedings had commenced in 2004, that the applicant had not identified how representation would be obtained, that witnesses had arranged their attendance with difficulty, and that an adjournment would cause cost and delay. The Tribunal had managed the hearing fairly and had intervened to assist the applicant where appropriate. No error of law or unfairness was shown.
5. Findings of fact. Neither the Employment Appeal Tribunal nor the Court of Appeal could interfere with factual findings where there was material on which the Tribunal could properly rely. The proceedings could not be used to obtain a rehearing on the facts. An allegation that evidence was perjured did not provide a basis for rehearing where, even if established, it would not affect the Tribunal’s overall conclusions.

1. Court of Appeal (Civil Division): On 2 November 2007, the application for permission to appeal was refused. [2007] EWCA Civ 1090.
2. Employment Appeal Tribunal: The application to review the Employment Tribunal’s decision was refused, as the proposed grounds had no reasonable prospect of success.
3. Employment Tribunal, Bristol: Following an eight-day hearing, the Tribunal held that the applicant had not been discriminated against and had been fairly dismissed. Its judgment was promulgated on 26 March 2006.