Kirkham v Outward Housing Ltd

An appellate court will rarely interfere with an Employment Tribunal’s case-management discretion. Intervention is confined to Wednesbury grounds, including an error of law or fact, disregard of principle, reliance on irrelevant matters, failure to consider relevant matters, or an outcome outside the permissible range.

A party is entitled to a reasonable opportunity to present the case, rather than an absolute entitlement to be heard in person. Where an application to postpone also raises a distinct issue of venue, the Tribunal must address both elements and take account of material medical evidence before exercising its discretion.

The claimant appealed urgently against an Employment Judge’s refusal, communicated on 23 November 2012, to postpone a pre-hearing review concerning whether his re-submitted employment claims were in time.

He had sought transfer of the hearing from East London to Watford because he said that he was the sole carer for his partner. His earlier transfer request had been refused for want of medical evidence. Shortly before the hearing, he supplied a redacted medical report and renewed his request. The Employment Judge refused the postponement by reference to the listed dates, without considering venue in light of the report.

The central issue was whether that refusal disclosed an appealable error in the exercise of case-management discretion.

1. Appeal allowed. The refusal of postponement was remitted to the Employment Tribunal for reconsideration and redetermination on 28 November 2012.

2. Case-management decisions, including adjournments and preliminary issues, ordinarily lie within the Tribunal’s discretion. An appellate court should interfere only on Wednesbury grounds. The authorities in [1998] ICR 43 and [1999] IRLR 184 confirmed that a different view of the merits does not establish an error of law.

3. The claimant was entitled only to a reasonable opportunity to advance his case; he had no absolute right to be heard in person. Nevertheless, the application raised two linked but separate matters: the timing of the hearing and its venue.

4. The medical report, though late, was potentially material to whether a transfer to a hearing centre nearer the claimant’s home would be a reasonable adjustment. No Employment Judge had considered the transfer request in the light of that evidence. The refusal therefore failed to take account of a relevant consideration and could not stand.

5. The reconsidering Employment Judge could decide whether the hearing should remain at East London or be transferred to Watford. The claimant could participate by telephone if necessary. Any fresh decision would stand or fall on its own reasoning.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the postponement and transfer request for reconsideration.
• Employment Tribunal: An Employment Judge refused the claimant’s late request to postpone the pre-hearing review and transfer its venue.