Pye v Queen Mary University of London

An employment tribunal's discretion to adjourn is constrained by judicial fairness and the overriding objective. Where a self-represented litigant produces credible medical evidence that they cannot conduct a hearing, and refusal would effectively end the claim, the tribunal must address whether a fair trial remains possible. It should not reject clear medical opinion by making medical assessments for itself. If it has genuine concerns about the evidence or prognosis, it should consider proportionate enquiries of the treating doctor or other medical evidence.

A party may not conduct secret correspondence with a tribunal. Material relied on in adversarial proceedings should ordinarily be disclosed to the other party, subject only to truly exceptional circumstances.

The claimant brought employment claims including discrimination, protected-disclosure detriment and victimisation, unfair dismissal, wrongful dismissal, holiday pay and written reasons for dismissal. The East London Employment Tribunal listed the matter for a 30-day hearing.

Shortly before the hearing, the unrepresented claimant sought a postponement on health grounds. He eventually disclosed a consultant psychiatrist's report stating that severe anxiety, panic disorder and depression made him unfit to plead his own case, while suggesting a prospect of improvement after at least three months. The tribunal refused an adjournment, heard the case in his absence and dismissed the claims.

The appeal concerned whether that refusal denied the claimant a fair hearing.

1. Appeal allowed and case remitted. The refusal of an adjournment was an error of law. Under rule 27(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the tribunal could proceed in an absent party's absence, but the practical effect here was equivalent to striking out an unrepresented claimant's claims.

2. The discretion to adjourn was not unfettered. It had to be exercised judicially, with regard to relevance, reason, fairness and the overriding objective. The Tribunal did not finally resolve whether appellate review was confined to Wednesbury principles or required an independent assessment of fairness. On either approach, the refusal could not stand.

3. The disclosed psychiatrist's report gave a diagnosis, explained the claimant's inability to conduct his own case and indicated a reasonable prospect of sufficient recovery. The tribunal wrongly treated the report as giving no reason to think that the claimant could improve. It did not ask the necessary question: whether a fair trial remained possible if the application were refused.

4. The tribunal was entitled to have concerns about whether the psychiatrist had all relevant history. However, it impermissibly approached medical issues without medical support. Consistently with Teinaz, it should at least have considered prompt further enquiries of the doctor, or granted the adjournment. Essential fairness required an adjournment.

5. The claimant's earlier undisclosed report was properly excluded. A litigant should not send evidence privately to an adjudicative tribunal in adversarial proceedings. The tribunal may decline the material or notify the sender that it will be disclosed unless a proper exceptional basis for non-disclosure is established.

6. On remission, the tribunal could consider separating issues to shorten the hearing. Any future issue about fitness to participate should be determined by proper medical evidence. Both parties must ordinarily have access to medical questions and answers relied upon by the tribunal.

• Employment Appeal Tribunal: allowed the claimant's appeal and remitted the claims for further case management and determination.
• Employment Tribunal, East London: refused an adjournment on 9 February 2011, proceeded in the claimant's absence and dismissed his claims. Written reasons were delivered on 1 April 2011.