Leeks v Norfolk and Norwich University Hospitals NHS Foundation Trust

The Employment Appeal Tribunal held that appellate review of Employment Tribunal case-management decisions remains an error-of-law review and does not become a re‑making of the decision even when disability rights and reasonable adjustments are engaged. Instead, tribunals must scrutinise the first‑instance decision for legal error, procedural unfairness or perversity. Reasonable adjustments are an important factor in the balancing exercise, but they do not automatically convert an appeal into a rehearing or permit the appellate tribunal to substitute its own discretion for that of the tribunal below.

The appellant, a disabled former employee, challenged Employment Tribunal case‑management decisions refusing an extension, refusing a telephone preliminary hearing and striking out her claim for failure to provide further particulars. The appellant argued that, in cases involving disabled litigants, the Employment Appeal Tribunal should review case‑management decisions by determining fairness itself rather than by conventional appellate review. The principal questions were the standard of appellate review where disability and reasonable adjustments are alleged, and whether procedural irregularities or inadequate reasons vitiated the ET's decisions. The EAT heard argument on a number of related authorities and dismissed the appeal.

1. The appeal is dismissed. The EAT will not, as a general rule, remake case management decisions on appeal even where disability and reasonable adjustments are in issue. The correct appellate enquiry is whether there was an error of law, a serious procedural irregularity or a decision that was plainly wrong and outside the generous ambit where reasonable decision‑makers may disagree (see paras [85]–[91]; disposition).
2. While fundamental rights and proportionality are relevant considerations, they do not displace the statutory appellate jurisdiction of this Tribunal or require the Tribunal to conduct a de novo assessment in place of the ET (see discussion of [2013] UKSC 61 and relevant authorities).
3. Reasonable adjustments and the need to secure effective participation by disabled litigants are important factors to be placed into the balancing exercise undertaken by the first‑instance tribunal. In extreme cases they may amount to a procedural irregularity justifying intervention; otherwise they inform whether the exercise of discretion was legally flawed (see paras explaining relationship to Pye v Queen Mary University of London, Rackham and Galo).
4. The EAT distinguished and declined to follow paragraph 54 of the NICA decision in Galo v Bombardier Aerospace UK where that paragraph suggested the appellate tribunal must always determine fairness for itself; the EAT treated that passage as incorrect in principle and not binding on this Tribunal (see paras discussing stare decisis and hierarchy).
5. Applying the correct principles to the facts, the ET was entitled to refuse the adjournments and to proceed. The medical evidence was insufficiently specific and largely historic. The ET was entitled to conclude there had been no change in circumstances and to regard the appellant's conduct as insufficient to justify postponement or substitution by telephone CMD. The costs order and consideration of without‑prejudice correspondence did not disclose a procedural irregularity warranting interference.
6. Order: the appeal is dismissed in full. Costs issues below remain undisturbed.

• Employment Appeal Tribunal: Appeal against Employment Tribunal decisions (refusal of postponement/substitution by telephone CMD; alleged procedural irregularity; costs). Judgment delivered 27 February 2018. Appeal dismissed.
• Employment Tribunal (Norwich): Preliminary Hearing decisions including refusal to adjourn and strike out/order for costs. Decision of 28 August 2015 (reasons sent 2 October 2015).