Beardshall v Rotherham Metropolitan Borough Council & Ors

Where refusal of an adjournment may prevent a party from participating in proceedings determining civil rights, the decisive question is whether the refusal produces an unfair hearing. This is a question of law for an appellate tribunal.

A tribunal may balance delay, cost, prejudice and the interests of other litigants. But, where medical evidence is accepted as showing that a self-represented party is genuinely unfit to attend, it is not legitimate to treat the absence of a prognosis as evidence that the party will never be fit. The tribunal should seek reasonably available clarification and consider adjustments before proceeding in that party’s absence.

The claimant, a teacher, brought claims for disability discrimination, trade union detriment and unfair dismissal. He suffered from anxiety, depression and post-traumatic stress disorder. His claims were listed for a five-day Employment Tribunal hearing after earlier delays and a postponement sought by the respondents.

Shortly before the hearing, the claimant sought a postponement. His general practitioner supported the request and later stated that he was not well enough to attend and that requiring attendance would severely affect his health. The Employment Tribunal accepted that he was too ill to attend but refused a further postponement. It heard the claims in his absence and dismissed them.

The appeal concerned whether the refusal of the applications on 4 and 5 July 2011 denied the claimant a fair hearing.

1. Appeal allowed. The Employment Tribunal’s refusal to postpone the hearing was plainly wrong. It denied the claimant a fair hearing and amounted to a denial of justice.

2. The proper appellate question was whether the refusal imperilled the fairness of the proceedings as a whole, rather than simply whether it fell within a broad discretionary range. That approach followed O’Cathail v Transport for London [2012] ICR 561, which the Appeal Tribunal agreed correctly reflected the principles in Terluk v Berezovsky [2010] EWCA Civ 1345 and Osborn and Anor v The Parole Board [2010] EWCA Civ 1409.

3. The Tribunal accepted the medical evidence that the claimant was ill and unable to attend. It could properly consider delay, the respondents’ position and the needs of other litigants. However, both parties bore responsibility for delay, and the Tribunal had found that the claimant’s conduct could not be regarded as unreasonable in light of his illness.

4. The Tribunal’s central error was to treat the absence of evidence of a future attendance date as if the medical evidence showed that the claimant might never be fit to participate. The claimant had not been asked to obtain evidence on prognosis. Further information from his GP could readily have been sought, and the respondents could have been given an opportunity to clarify the GP’s opinion.

5. The Tribunal also wrongly relied on an older psychiatric report prepared for a different purpose. The current evidence showed an exacerbation of the claimant’s condition following recent bereavements and litigation stress. It indicated a need to consider reasonable adjustments, not a basis for assuming an indefinitely impossible hearing.

6. The matter was remitted to a freshly constituted Employment Tribunal. Appropriate case management should obtain full current medical evidence on prognosis, ability to conduct a five-day hearing, and adjustments needed to secure fairness to all parties.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the claims to a freshly constituted Employment Tribunal.
• Employment Tribunal (Sheffield): Refused postponement applications on 4 and 5 July 2011, proceeded in the claimant’s absence, and dismissed all claims by a judgment promulgated on 28 July 2011. A review application was refused.