D' Silva v Manchester Metropolitan University

An application to adjourn must be determined by asking whether refusing it would make the hearing unfair. The appellate court reviews fairness directly, while respecting the first-instance tribunal’s assessment of the circumstances. There is no automatic entitlement to an adjournment because a party has lost representation or relies on ill health. The tribunal must balance the applicant’s ability to participate, the availability and quality of medical evidence, fairness to the opposing party and other litigants, delay, proportionality, the age and complexity of the case, and the practical effect on witnesses and hearing time. A tribunal may proceed without medical evidence where the circumstances make that fair, but must remain open to revisiting the decision if later evidence shows that the party was unfit to represent himself.

The Claimant appealed against the Employment Tribunal’s judgment dated 2 April 2009, which dismissed his claim concerning the issue remitted for rehearing after an earlier appeal. Before the rehearing, his legal representation ended shortly before the listed hearing and he asserted that anxiety and depression made him unfit to represent himself. The Tribunal refused an adjournment, proceeded with the hearing, and later found that the Claimant had not established less favourable treatment on the remitted issue.

The central issue was whether refusal of the adjournment rendered the hearing unfair, having regard to the Claimant’s loss of representation, alleged ill health, the absence of supporting medical evidence, and the competing interests in avoiding further delay.

1. Appeal dismissed. The Employment Tribunal had not erred in law and the resulting hearing was not unfair.
2. The proper appellate question was whether refusal of the adjournment rendered the hearing unfair, applying Terluk v Berezovsky [2010] EWCA Civ 1345. The appellate court was not confined to asking whether the decision fell within a broad discretionary range. It had to apply the legal test to the facts as identified and evaluated by the Tribunal. More than one outcome might be fair.
3. A party has a right to representation under section 6(1) of the Employment Tribunals Act 1996, and representation will usually assist equality of arms. However, loss of representation shortly before a hearing creates no automatic right to an adjournment. Fairness must be assessed in the round, including the party’s ability to present the case, the opposing party’s interests, delay, the age and scope of the proceedings, the readiness of witnesses, and proportionality.
4. The Tribunal was entitled to take account of the absence of medical evidence. Under Teinaz v London Borough of Wandsworth [2002] ICR 1471, the applicant bears the burden of showing a genuine need for an adjournment. The Tribunal was not bound to postpone the hearing to obtain medical evidence. Given the Claimant’s attendance, the absence of evidence that he was unfit, the limited remitted issues, the prepared case and the substantial hearing time that would have been lost, proceeding was fair.
5. A tribunal adopting that course must remain open to changing its mind if later evidence establishes that the party was unfit to represent himself. The later report did not do so: it did not state that the Claimant was unfit to attend or represent himself.
6. The Tribunal’s reference to a history of applications linking ill health and loss of representation was vague and unhelpfully expressed. Properly understood, however, it referred to earlier applications in 2005 and did not materially undermine the decision.

• Employment Tribunal: Judgment dated 2 April 2009 dismissed the Claimant’s claim on the remitted issue.
• Employment Appeal Tribunal: The appeal against refusal of an adjournment was dismissed.