Transport for London v O'Cathail

An employment tribunal deciding a late adjournment application must assess overall fairness to both parties in the round. The applicant’s likely absence is highly relevant, but does not determine the application. The tribunal may balance that prejudice against the other party’s right to a hearing within a reasonable time and the public interest in prompt and efficient adjudication.

On appeal, the Employment Appeal Tribunal may interfere with the exercise of that case-management discretion only for an error of legal principle or a perverse outcome. It must not substitute its own assessment of fairness. Article 6 does not invariably require an adjournment merely because unchallenged medical evidence shows that a party cannot attend.

An unrepresented claimant applied at short notice to adjourn the full hearing of his disability discrimination proceedings because a respiratory infection made him medically unfit to attend. The employment tribunal had previously adjourned the hearing on medical grounds. It refused the renewed applications after considering delay, unavailable witnesses, wasted costs, tribunal resources, the effect on other proceedings and its ability to decide much of the claim from documents. It heard and dismissed the claim in the claimant’s absence.

The Employment Appeal Tribunal allowed the claimant’s postponement appeal, set aside the merits judgment and remitted the proceedings to a differently constituted tribunal: [2012] ICR 561. It held that the refusal had denied the claimant a fair hearing. The employer appealed. The central issues were the fairness test governing an employment tribunal’s adjournment decision and the limited basis upon which the Employment Appeal Tribunal may interfere with that case-management discretion.

1. Appeal allowed. The employment tribunal committed no error of law when it refused the adjournments. It gave scrupulously detailed consideration to the application, relied only upon relevant matters and recognised that proceeding despite unchallenged medical evidence was exceptional.

2. An employment tribunal has a broad discretion over adjournments under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Overall fairness to both parties is paramount and must be assessed in the round. The likely absence of the applicant is highly relevant, but is not conclusive. The tribunal could find that repeatedly postponing the employer’s hearing because of the claimant’s recurrent health problems would cause greater unfairness than proceeding.

3. The Employment Appeal Tribunal’s jurisdiction under section 21 of the Employment Tribunals Act 1996 is confined to questions of law. It may intervene in an employment tribunal’s exercise of case-management discretion only where the tribunal made an error of legal principle or reached a perverse outcome. Such an error includes considering an irrelevant matter or omitting a relevant one. Perversity requires an outcome which no reasonable tribunal, properly directing itself, could have regarded as fair in all the circumstances.

4. The approach in Terluk v Berezovsky [2010] EWCA Civ 1345 did not govern an appeal from an employment tribunal. Terluk concerned an appeal under the Civil Procedure Rules, whose appellate regime differs from the statutory question-of-law jurisdiction of the Employment Appeal Tribunal. By deciding for itself whether the refusal produced a fair solution, the Employment Appeal Tribunal impermissibly substituted its assessment for that of the employment tribunal.

5. Article 6 of the European Convention on Human Rights does not invariably require an adjournment where medical evidence establishes that a party cannot attend. The tribunal must balance the adverse consequences of proceeding in that party’s absence against the opposing party’s right to a trial within a reasonable time and the public interest in prompt and efficient adjudication.

6. The order of the Employment Appeal Tribunal setting aside the merits judgment and directing a fresh hearing was set aside. Mummery LJ delivered the judgment; Etherton and McFarlane LJJ agreed.

1. Court of Appeal (Civil Division): allowed the employer’s appeal, holding that the employment tribunal had committed no error of law in refusing the adjournments: [2013] EWCA Civ 21.

2. Employment Appeal Tribunal: allowed the claimant’s postponement appeal, set aside the substantive judgment and remitted the claim for a fresh hearing before a differently constituted tribunal: [2012] ICR 561. In an earlier full-merits appeal, it had dismissed the claimant’s appeal because no arguable point of law arose.

3. Employment tribunal: refused the claimant’s late applications to adjourn the February 2011 hearing, proceeded in his absence and dismissed his discrimination and related claims.