Birdi v Dartford Visionplus Ltd & Anor

Where a party seeks a postponement on medical grounds, an Employment Tribunal must fairly investigate significant new information bearing on that party’s ability to attend or prepare the case. A deficient initial medical letter does not justify refusal where the Tribunal has not identified the deficiency in time to cure it and later information gives a substantial reason to obtain further evidence.

A refusal of an adjournment is unreasonable if no reasonable Tribunal could refuse a short adjournment to obtain authoritative medical evidence in those circumstances. A consequential strike-out and costs order founded on an assumed absence of medical justification cannot stand.

The claimant appealed against the unanimous decision of the Employment Tribunal sitting at Ashford on 1 February 2012. The Tribunal refused to postpone a three-day hearing, struck out her claims for unreasonable conduct and failure actively to pursue them, and ordered her to pay £4,055 costs.

The claimant had undergone fertility treatment, had a history of miscarriages, and informed the Tribunal shortly before the hearing that an implanted embryo had been lost two days earlier. Her counsel sought an adjournment to obtain further medical evidence. The central issue was whether refusal of that adjournment was a permissible exercise of the Tribunal’s discretion and, if not, whether the consequential strike-out and costs order could remain.

1. Appeal allowed unanimously. The Employment Tribunal’s refusal to adjourn was unreasonable. Its orders striking out the claim and awarding costs were set aside, and the matter was remitted to a different Tribunal.
2. The Tribunal was entitled to require adequate medical material and to balance fairness to both parties. However, it had not indicated until the afternoon before the hearing that it regarded the 18 January medical letter as inadequate. The claimant therefore had no fair opportunity to obtain fuller evidence before the hearing.
3. More importantly, counsel had told the Tribunal that the claimant, who had suffered three previous miscarriages and undergone extensive fertility treatment, had lost an implanted embryo on 30 January. That materially changed the circumstances. The information required further investigation before the Tribunal could conclude that the medical application lacked foundation.
4. The reasonable course was to grant a short adjournment so that further medical evidence could authoritatively determine whether the claimant was fit to attend and conduct the hearing. The fact that the earlier medical evidence could have been more detailed, and that the claimant had previously said she could not prepare the case, did not answer the later question of her fitness after the loss of the embryo. No reasonable Tribunal could refuse that adjournment.
5. The strike-out necessarily fell with the flawed refusal of the adjournment. The costs order was also unsustainable. It depended on the conclusion that the claimant had failed to prepare and attend without medical justification. A possibly insufficient medical letter, submitted promptly after a joint application for a longer hearing was refused, was not itself unreasonable conduct.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, set aside the refusal of postponement, strike-out and costs order, and remitted the case to a different Employment Tribunal.
• Employment Tribunal sitting at Ashford: On 1 February 2012, refused a postponement, struck out the claimant’s claim for unreasonable conduct and failure actively to pursue it, and ordered costs of £4,055.