Asim v University Hospital Birmingham NHS Foundation Trust & Anor

An Employment Tribunal should usually adjourn where a litigant whose presence is needed for a fair hearing is genuinely unable to attend or conduct the case through no fault of his own. The applicant must establish the need for an adjournment. Where fresh medical evidence is credible, relevant and likely to have materially affected the decision, it may be admitted on appeal under the Ladd v Marshall principles, the applicable practice direction and the overriding objective. If the evidence shows that the tribunal would probably have adjourned, refusal of the adjournment and any consequential dismissal should be set aside.

The appellant brought a race-discrimination claim concerning an employment reference and the withdrawal of a prospective job offer. He failed to attend the listed two-day Employment Tribunal hearing and was unrepresented. An application for an adjournment, based partly on illness, was refused and the claim was dismissed under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Schedule 1 rule 27. A subsequent review application was also refused.

On appeal, the appellant sought to adduce an affidavit and a doctor’s letter. The central issues were whether the medical letter should be admitted and whether, had it been before the Employment Tribunal, the hearing should have been adjourned.

1. The affidavit concerning the difficulties of obtaining representation was refused. It did not satisfy the first limb of the Ladd v Marshall test because there was no adequate explanation for the delay or why it could not have been produced before the Employment Tribunal.
2. The doctor’s letter was admitted. It was apparently credible, relevant and likely to have had an important, probably determinative, influence on the adjournment decision. Although the reasonable-diligence objection had considerable force, the doctor had advised the appellant that no additional sick note was needed and that a medical report would be supplied if formally requested. That explained why the evidence had not been obtained earlier.
3. The governing approach was stated in Teinaz v London Borough of Wandsworth: a litigant whose presence is needed for a fair trial and who cannot attend through no fault of his own will usually have to be granted an adjournment, subject to the applicant proving that the inability is genuine.
4. The appellant would have had not merely to attend but to represent himself throughout a two-day hearing. On the admitted medical evidence, the Employment Tribunal would have granted the adjournment. Its refusal was therefore unsustainable.
5. The appeal was allowed. The Employment Appeal Tribunal substituted a decision allowing the adjournment, set aside the consequential dismissal of the claim, and remitted the claim to an Employment Tribunal for hearing. The tribunal which had heard the adjournment application could hear the remitted claim, subject to the need for speedy listing.

• Employment Tribunal: refused an adjournment and dismissed the race-discrimination claim on 23 April 2009; the decision was entered in the register on 8 May 2009.
• Employment Tribunal: refused a subsequent review application.
• Employment Appeal Tribunal: admitted the doctor’s letter, allowed the appeal, set aside the dismissal and remitted the claim for hearing.