O' Cathail v Transport For London

An adjournment decision is generally reviewable only for legal error. Where refusal of an adjournment may imperil the fairness of the proceedings as a whole, however, the appellate tribunal must determine for itself whether the resulting hearing was fair. A party who is medically unfit to attend and whose participation is required for a fair hearing will usually require an adjournment, provided the medical evidence is accepted or appropriately investigated. Case age, expense, tribunal resources and pressure on other litigants cannot justify proceeding in a way that denies the party any meaningful opportunity to give evidence, call or question witnesses, or make submissions.

The claimant appealed from decisions of the London Central Employment Tribunal dated 21 and 23 February 2011. The tribunal refused to adjourn an eight-day hearing despite medical evidence that the claimant was unfit to attend because of a respiratory infection. It proceeded in his absence and subsequently dismissed all his claims by a judgment dated 17 March 2011.

The appeal concerned whether the refusal of an adjournment was a discretionary case-management decision reviewable only on conventional grounds, or whether the Employment Appeal Tribunal had to determine whether the hearing was fair in the circumstances.

1. Applicable appellate approach. The requirement of a fair hearing derives from the common law and is reinforced by article 6 of the European Convention on Human Rights. Whether that minimum requirement has been met is a question of law. For ordinary adjournment decisions, the Employment Appeal Tribunal should intervene only where the tribunal applied wrong legal principles, omitted an essential consideration, relied on an irrelevant consideration, or reached a conclusion outside the range of reasonable disagreement.
2. Where refusal of an adjournment imperils the fairness of the proceedings as a whole, the appellate tribunal must look for itself at whether the effect was to deny a fair hearing. More than one solution may be fair; the question is whether the solution adopted was fair. Teinaz and Andreou remain valuable guidance, but any broad discretionary language is subject to this fundamental requirement.
3. The tribunal had accepted, or at least had not questioned, medical evidence that the claimant was suffering from a respiratory infection, required rest and was unfit to attend. Without further inquiry of the kind contemplated in Teinaz, it was bound to proceed on that evidence. There was no medical basis for expecting him to attend after only two days, and further evidence on 23 February expressly confirmed that he remained unfit.
4. The refusal deprived the claimant of the ordinary incidents of a fair hearing, including giving evidence, calling and questioning witnesses, and making submissions. The factors relied upon by the tribunal—delay, expense, stale evidence, tribunal resources, other litigants and proportionality—could not justify proceeding while the claimant was unfit to participate. The respiratory illness was not shown to arise from his disability, so the decision was not determined on disability-discrimination grounds.
5. The tribunal’s judgment dated 17 March 2011 was set aside. The matter was remitted for hearing by a freshly constituted tribunal. A case-management discussion was recommended to consider whether the claimant’s related outstanding proceedings should be heard together.

• Employment Tribunal, London Central: On 21 and 23 February 2011 refused applications to adjourn the hearing. The hearing proceeded in the claimant’s absence, and his claims were dismissed by judgment dated 17 March 2011.
• Employment Appeal Tribunal: Allowed the appeal, set aside the tribunal’s judgment and remitted the matter to a freshly constituted tribunal.