Wania v Wincanton Group Ltd

An Employment Tribunal may grant an adjournment only on terms requiring a party to contribute to the other party’s wasted costs. The question on appeal is whether that case-management decision lay outside the range of decisions reasonably open to the Tribunal.

Where a claimant bears the burden of proving disability and has failed, despite opportunity and assistance, to obtain the medical evidence sought, an adjournment on costs terms may be justified. Earlier changes in the respondent’s position do not prevent the Tribunal from assessing responsibility by reference to the whole procedural history.

The claimant alleged disability discrimination and unfair dismissal following his dismissal on grounds of ill health. At an earlier case-management discussion, the Employment Tribunal directed that, if disability remained disputed, the parties should jointly instruct a medical expert.

The timetable was delayed. The respondent later maintained that an expert report was unnecessary, although it assisted in identifying possible experts. The claimant did not actively pursue expert evidence. At the February 2013 merits hearing, he sought an adjournment to obtain such evidence. The Employment Tribunal was prepared to adjourn only if he contributed £1,200 towards the respondent’s costs. He withdrew the application and his disability claims were rejected.

He appealed the conditional adjournment decision.

1. Appeal dismissed. The Employment Tribunal’s decision to make an adjournment conditional upon a £1,200 contribution to the respondent’s costs was a reasonable case-management decision.

2. The appellate question was whether the condition fell outside the range of case-management decisions open to the Employment Tribunal. It did not. The Tribunal was entitled to consider the entire history rather than isolate the respondent’s change of position about joint instruction of an expert.

3. Although the respondent had initially agreed to joint expert instruction and later considered it unnecessary, the claimant bore the burden of establishing the facts and extent of his asserted disability. By the February 2013 hearing, he and his advisers had had the opportunity to identify and instruct an expert, but had not moved the matter forward. They had also received unfavourable case-management decisions and had not appealed them or taken further steps.

4. In those circumstances, an adjournment would have caused costs to be thrown away. It was open to the Tribunal, and was generous, to allow a further adjournment only on terms that the claimant contribute to those costs. No valid criticism of that decision was established.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the conditional adjournment decision.
• Bedford Employment Tribunal: refused to strike out the response; at the February 2013 hearing, offered an adjournment on a £1,200 costs condition, which the claimant declined; rejected the disability discrimination claims. The claimant withdrew his unfair-dismissal claim.