Chang-Tave v Haydon School & Anor

An adjournment will ordinarily be required where a litigant whose presence is necessary for a fair trial cannot attend through no fault of their own and reliable medical evidence supports the inability to attend. A tribunal must assess the medical evidence and should not rely on irrelevant indications that the litigant can manage written correspondence or prepare documents. Under rule 18(7)(c), striking out for unreasonable conduct requires consideration of whether there has been deliberate and persistent disregard of procedural requirements and, separately, whether a fair trial remains possible. A claim should not be struck out for late service where the claimant has complied with the tribunal’s latest order extending time and any resulting prejudice could be cured by an adjournment.

The claimant brought proceedings alleging unfair and wrongful dismissal, racial discrimination, harassment and victimisation. A ten-day merits hearing was listed before the Watford Employment Tribunal for September 2009.

The claimant applied for a postponement on medical grounds. The tribunal refused the application, proceeded in his absence, and struck out the claims under rule 18(7)(c) for unreasonable conduct based principally on late service of his witness statement. The claimant appealed. The central issues were whether the medical evidence required an adjournment and whether the strike-out order was legally justified.

1. Appeal allowed. The refusal to postpone the merits hearing was wrong in law. The medical evidence showed that the claimant had a depressive disorder, remained under medical care, and had been advised not to attend because the pressure of the hearing could significantly worsen his condition. In those circumstances, fairness under Article 6 required an adjournment. The case fell within the principle in Teinaz v London Borough of Wandsworth [2002] IRLR 721.
2. The tribunal had taken account of irrelevant matters, including the claimant’s lucid correspondence and detailed witness statement. Those matters did not contradict the unchallenged medical opinion concerning his ability to attend a lengthy hearing requiring his oral evidence. The tribunal also treated the medical advice as merely possible when the evidence established that the claimant had received it.
3. For a strike-out application under rule 18(7)(c), the tribunal must first determine whether the party has engaged in conduct amounting to deliberate and persistent disregard of procedural steps or tribunal orders. If so, it must then consider whether a fair trial remains possible. The approach in Blockbuster v James [2006] IRLR 630 was applied.
4. The claimant had complied with the order of 2 September 2009 requiring delivery of his witness statement by 4 September. The tribunal failed to take that order into account and therefore could not properly find unreasonable conduct based on non-compliance. It also failed to address whether a fair trial was possible, despite the detailed particulars served with the claim and further particulars supplied to the respondents.
5. Any difficulty caused by late service would have been removed by the adjournment and later relisting. The strike-out order was set aside. The case was directed to be re-listed for a full merits hearing before a different tribunal, with the Regional Employment Judge to decide whether a further case management discussion was necessary.

• Employment Appeal Tribunal: Allowed the appeal against the Watford Employment Tribunal’s judgment promulgated on 8 October 2009. Set aside the strike-out order and remitted the proceedings for a full merits hearing before a different tribunal.