De-Smith v AWE Plc & Ors (Practice and Procedure)

An appellate court may interfere with an Employment Tribunal case-management decision only for an error of legal principle or a perverse outcome. An application to adjourn on medical grounds does not itself require an adjournment. The Tribunal must assess overall fairness to both parties, including the effect of proceeding without the applicant, the other parties’ entitlement to a hearing within a reasonable time, and the public interest in efficient adjudication.

Where medical evidence is accepted and does not give rise to doubts requiring clarification, the Tribunal is not generally obliged to seek further evidence about the likely duration or cause of the illness. Delay caused by relisting is a relevant consideration under the overriding objective.

The Claimant appealed against an Employment Tribunal decision refusing to postpone a ten-day hearing of his disability discrimination, victimisation and unfair dismissal claims. He attended the first day but did not attend the following day. He supplied a GP certificate stating that severe anxiety and depression made him unfit to attend court for two weeks.

The Tribunal accepted that he was unwell, considered his written evidence and that of his witness, and decided that fairness required the hearing to continue. It took account of the absence of a prognosis, the parties’ preparation, the presence and circumstances of eight individual respondents, and the likely delay in obtaining a further ten-day listing.

The appeal challenged the Tribunal’s approach to further medical inquiries, delay, engagement with directions and overall fairness.

1. Appeal dismissed. The Employment Tribunal did not err in law, apply a wrong principle, or reach a perverse conclusion by refusing the adjournment.

2. Following O’Cathail v Transport for London [2013] EWCA Civ 21, appellate intervention in Employment Tribunal case-management decisions is confined to error of legal principle or perversity. Fairness is assessed in the round. It is not determined solely by the position of the absent party.

3. The Tribunal accepted the GP certificate and proceeded on the basis that the Claimant was unfit for the listed December hearing. It did not infer that he would be unfit indefinitely. Its inquiry about a future ten-day listing showed the contrary. The absence of a prognosis was recorded but was not material to the decision.

4. Teinaz v Wandsworth London Borough Council [2002] ICR 1471 did not impose a duty to obtain further medical evidence. Where there is some medical evidence but the tribunal has doubts about its genuineness or sufficiency, it has a discretion to seek clarification. Here there was no such doubt. Nor was the cause of the Claimant’s illness relevant to whether the hearing should be adjourned.

5. The likely delay of at least five months was a relevant consideration under the overriding objective in the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. The Tribunal was entitled to weigh that delay, the age of the claims, the position of the numerous respondents, the evidence already available, and the public interest in prompt adjudication. The Claimant’s late compliance with the witness-statement direction had been considered and could properly receive limited weight in light of his earlier non-compliance.

• Employment Appeal Tribunal — dismissed the Claimant’s appeal against the refusal to adjourn: [2017] UKEAT 0292_16_3107.
• Employment Tribunal — refused on 2 December 2015 to postpone the full hearing of the Claimant’s claims; the judgment was sent to the parties on 30 December 2015. No citation was stated.