U v Butler & Wilson Ltd (Practice and Procedure : Postponement or stay)

Where a tribunal invites an evidently unwell disabled litigant in person to make an oral application to review a decision, it must properly exercise its case-management powers. In the exceptional circumstances of this case, no reasonable tribunal could fail to consider and grant a short adjournment so that the litigant could regain sufficient lucidity and obtain immediately available documents.

Medical evidence is not material to whether such a brief, initially contained adjournment should be granted. It may be material to an adjournment to another day. If a tribunal volunteers information about an oral review application, it should also explain that a written application may be made within the applicable period.

The Employment Tribunal struck out the appellant’s remaining employment claims at a pre-hearing review for non-compliance with case-management orders. The appellant arrived after the strike-out decision. He was a litigant in person with a known mental disability, said that he was experiencing a psychotic episode, appeared plainly unwell, and said that his bundle was at a printer next door.

The Employment Judge invited him to apply immediately and orally for a review. She refused the application without adjourning, and declined to revoke the strike-out. The appellant appealed. The surviving grounds challenged the failure to adjourn and the treatment of the absence of medical evidence.

1. Appeal allowed. The Employment Judge erred in failing to consider and grant a brief adjournment before requiring the appellant to pursue an oral review application. On the facts known to her, the appellant was plainly unwell, displayed symptoms consistent with his asserted psychotic episode, wished to seek a review, and said that the documents on which he wished to rely were immediately adjacent. Even on a Wednesbury standard, the failure was obviously wrong: paras [85]-[86].

2. The conclusion was confined to a short adjournment, initially within the time allocated to the hearing, to enable the appellant to recover sufficient lucidity if possible and obtain the documents. For that limited purpose, the availability of a medical report was irrelevant. Medical evidence could, however, be relevant to an application to adjourn the matter to a different day: para [88].

3. The tribunal did not decide whether appellate review of an adjournment issue requires a fresh determination of procedural fairness or is confined to judicial-review principles. The appeal succeeded on either approach: paras [70]-[73], [86].

4. The appellant’s known disability was an important factor in case-management decisions under the overriding objective. The tribunal did not determine the asserted wider legal duties arising from the Equality Act 2010, the UNCRPD, or Convention rights: paras [63]-[65].

5. Although not a ground on which the appeal was allowed, the Employment Judge should, having raised the possibility of a review application, have explained that it could be made in writing rather than immediately and orally. The omission denied the appellant a proper opportunity to decide whether to apply later with supporting material: paras [91]-[95].

6. The strike-out decision remained extant because there was then no effective review application. The appellant was permitted 21 days to submit a written review application. Any application was remitted to a different Employment Judge for consideration under Rules 35 and 36.

• Employment Appeal Tribunal: Allowed the appeal from the refusal of the oral review application. It directed that any fresh written review application be considered by a different Employment Judge.
• Employment Tribunal: At a pre-hearing review on 16 February 2012, struck out the remaining claims for non-compliance with case-management orders and refused to revoke that decision on an immediate oral review.