Boothe v The Governing Body Of Toynbee School

An appeal tribunal will not ordinarily admit fresh evidence where the party unsuccessfully sought reconsideration below, did not appeal that refusal, and has not complied with the procedural requirements for a fresh-evidence application. The evidence must also satisfy the criteria in Ladd v Marshall.

An Employment Tribunal may refuse a medically based postponement where it has considered the application and the party had adequate opportunity to provide evidence showing inability to attend. That case-management decision attracts substantial appellate deference.

Strike-out was available where non-compliance with case-management orders lacked just cause. A tribunal may also assess whether a fair hearing has become impracticable by considering the history and likely future conduct of the litigation and the other party's entitlement to a fair hearing.

A teacher brought claims arising from her dismissal on capability grounds, including unfair dismissal and disability discrimination. The Employment Tribunal struck out the claims after she failed to comply with case-management directions and did not attend the listed hearing. It relied alternatively on unjustified non-compliance and the conclusion that a fair hearing was no longer possible.

On appeal, the claimant sought to adduce medical material that had not been before the Tribunal. She also challenged the refusal of a postponement and both grounds of strike-out. The central issues were whether fresh evidence should be admitted, whether the Tribunal erred in proceeding in her absence, and whether its strike-out decision disclosed an error of law.

1. Appeal dismissed. The application to adduce fresh medical evidence was refused. The claimant had already sought reconsideration by the Employment Tribunal, which had refused that application without any appeal from its decision. She also failed to comply with section 10 of the Practice Direction (EAT Procedure): the application was made only at the appeal hearing, unsupported by evidence, and without notice to the respondent.

2. In any event, the evidence did not satisfy the first and third requirements in Ladd v Marshall, [1954] 1 WLR 1489. There was no evidence explaining why it could not have been obtained with reasonable diligence before the Tribunal hearing. Its apparent credibility was also undermined because the respondent had already challenged the authenticity of material said to emanate from the same GP surgery.

3. The Tribunal had considered and refused the renewed postponement application. Its reasons, read in their procedural context, showed that it had taken account of the absence of medical evidence demonstrating an inability to attend the hearing. Although fuller express reasons would have been preferable, there was no error of law. The guidance in Teinaz did not require a short adjournment for further evidence where the claimant had ample opportunity to obtain it. There was no infringement of Article 6 of Schedule 1 to the Human Rights Act 1998.

4. The Tribunal was entitled under Rule 37(1)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to find non-compliance without just cause. It could infer from the claimant's extensive written communications that she had no valid reason for failing to provide the required witness and impact statements. This was not an impermissible medical assessment of capacity.

5. The alternative conclusion under Rule 37(1)(e), that a fair hearing was no longer possible, was also not perverse. The Tribunal could consider the claimant's past conduct, likely further postponement applications and expansion of issues, the respondent's expense and inconvenience, and its own right to a fair hearing. The strike-out order therefore stood.

• Employment Appeal Tribunal: dismissed the claimant's appeal from the Employment Tribunal's strike-out order.
• Employment Tribunal: struck out the claims at the hearing on 24 November 2014, for non-compliance with case-management orders and because a fair hearing was no longer possible; written reasons were promulgated on 9 December 2014.