Khan v. Vignette Europe Ltd

An application for adjournment based on religious observance is a case-management matter to be decided by balancing competing rights. Tribunals retain a wide judicial discretion to refuse adjournments provided they act lawfully and conscientiously.

Article 6 rights must be weighed alongside the respondent's right to a timely and unimpaired hearing and the public interest in finality. A late request that could reasonably have been made earlier attracts less weight.

Expert theological evidence about religious practice is unlikely to assist where the tribunal accepts the genuineness of the belief and can manage evidence and cross-examination sensitively.

The claimant appealed from an Employment Tribunal decision dismissing his equal pay and unfair dismissal claims. He challenged only the ET's refusal to adjourn a five-day hearing part-heard on the third day because the first five days coincided with Ramadan. The claimant left the hearing after refusal and the ET proceeded in his absence. The appeal to the EAT proceeded under Rule 3(10). The EAT also refused the claimant's application to admit fresh expert evidence about Ramadan. The central issue was whether the ET's refusal to adjourn denied the claimant a fair trial under Article 6 ECHR.

1. Disposition: The appeal is dismissed. The ET did not err in law in refusing the adjournment or in proceeding to determine the case in the claimant's absence. (Order: appeal dismissed.)
2. The tribunal's power to adjourn derives from rule 10 of the Employment Tribunal (Constitution and Procedure) Regulations 2004 and is wide, but must be exercised judicially and in accordance with established principles such as those in [1979] IRLR 361 (Carter) and subsequent authority. The EAT will only interfere on limited grounds (e.g. perversity, mistake of law, failure to take relevant matters into account). (See Law section.)
3. When a refusal of adjournment engages Article 6, the tribunal must balance the claimant's Convention rights against the respondent's right to a fair trial within a reasonable time and the public interest in efficient justice. The claimant bears the onus of demonstrating the need for an adjournment and the genuineness of the inability to attend. Late-raised grounds which could reasonably have been raised earlier weigh against the applicant. (See paras [7.1]–[8].)
4. Expert theological evidence about the content or meaning of religious observance was not admitted. Where the ET accepted the genuineness of the claimant's belief, such expert reports were irrelevant or unlikely to affect the ET's discretionary balancing. Conflicting theological opinions would not assist the tribunal. The EAT refused admission of the fresh expert evidence. (See Fresh Evidence section.)
5. A tribunal may continue and determine proceedings in the absence of a party under rule 27 where the party fails to attend. The ET was entitled to hear evidence and to read and rely on the claimant's documentary material, subject to appropriate caution as to unsworn or unsigned statements. This course did not breach Article 6 on these facts. (See paras [8]–[9].)

• Employment Appeal Tribunal: Appeal from Reading Employment Tribunal judgment dismissing claims; appeal dismissed by this Tribunal. (Hearing under Rule 3(10); judgment delivered 14 January 2010.)
• Employment Tribunal (Reading): Judgment and reasons promulgated 16 September 2008 dismissing equal pay and unfair dismissal claims; refusal to adjourn on 3 September 2008 forms the sole ground of appeal to the EAT.