Firouzian v Metroline Travel Ltd (Unfair Dismissal)

An Employment Tribunal may refuse to postpone a preliminary hearing where its limited issues do not overlap with an impending criminal trial and do not create a real risk of interference with the claimant’s privilege against self-incrimination. The tribunal may also take account of whether personal attendance is necessary, including whether representation can adequately address procedural and medical-evidence matters.

On appeal, the lawfulness of the postponement decision falls to be assessed by reference to the material before the Employment Judge when the decision was made. Fresh medical evidence should ordinarily be put to the Employment Tribunal by a review application.

The claimant, a bus driver facing a Crown Court trial for causing death by dangerous driving, brought employment claims arising from his employer’s conduct procedures. He relied on depression both as the foundation for a disability claim and as a reason to postpone Employment Tribunal proceedings.

A preliminary hearing was listed to determine disability and potentially strike-out or deposit issues. An Employment Judge refused a further postponement sought because the criminal trial had been relisted. Following fresh medical evidence, a review application was also refused. The claimant appealed to the Employment Appeal Tribunal, contending that refusal to postpone was unfair.

1. Appeal dismissed. The Employment Judge was entitled to refuse to postpone the preliminary hearing on the material available when the decision was made.

2. The relevant preliminary issues concerned whether the claimant was disabled and the possible procedural disposal of his employment claims. They did not require determination of the facts of the fatal accident or otherwise overlap with the issues in the forthcoming criminal trial. Maintaining the hearing therefore did not risk infringement of the claimant’s right to silence or privilege against self-incrimination.

3. The tribunal was entitled to take account of the limited nature of the hearing and of the fact that the claimant need not personally attend if represented. His representative could address the steps needed to obtain a medical expert’s report and the disclosure of medical records.

4. The later general-practitioner’s letter was not before the Employment Judge when the postponement was refused. Fresh evidence should normally be advanced to the Employment Tribunal through its review jurisdiction. The subsequent refusal of review gave substantially the same reasons: absence of overlap with the criminal case and lack of need for the claimant’s attendance.

5. Although a merits hearing involving the claimant’s evidence and the same subject matter as the criminal proceedings might have required postponement, this preliminary hearing did not. The tribunal could properly retain it while working towards a full hearing after the criminal trial.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the Watford Employment Judge’s refusal, on 13 March 2012, to postpone the preliminary hearing.
• Employment Tribunal: a subsequent application to review the refusal in light of fresh medical evidence was rejected. The judgment states that the preliminary hearing remained confined to disability and related procedural issues.