Mvula v The Co-Operative Group Ltd

A tribunal may proceed in a party’s absence where it has considered the available information and any practicable enquiries about the reason for absence. A party seeking a postponement bears the burden of proving a genuine inability to attend through no fault of their own.

Medical material directed only to fitness for work, or giving vague diagnoses and a general recommendation to avoid stress, may be insufficient to establish inability to attend a tribunal hearing. The decision remains fact-sensitive and must be made consistently with the overriding objective and the right to a fair hearing.

The Claimant appealed against an Employment Tribunal decision at Birmingham which refused to postpone a costs hearing and proceeded in his absence. The Tribunal then made a costs order of £19,733.15 after finding that the Claimant had brought and continued proceedings vexatiously, abusively and unreasonably.

Before the costs hearing, the Claimant relied on medical letters and a fit note. The Acting Regional Employment Judge refused a postponement but invited attendance with further medical evidence. Neither the Claimant nor his representative attended, and no new evidence was produced.

The appeal was confined to whether the Tribunal should itself have considered postponing the costs hearing, including in light of the Claimant’s medical evidence and changed financial circumstances.

1. Appeal dismissed. The Employment Tribunal made no error of law by refusing to postpone the costs hearing and proceeding in the Claimant’s absence.

2. The applicable principle, drawn from Teinaz, is that a litigant whose attendance is necessary for a fair trial and who is genuinely unable to attend through no fault of their own will usually require an adjournment. However, the applicant bears the burden of proving the genuine need for it. The right to a fair hearing under [2002] IRLR 721 did not displace that evidential burden.

3. The medical evidence did not establish that the Claimant was unfit to attend a tribunal hearing. It addressed fitness for work, gave no meaningful account of symptoms, severity or functional effect, and did not explain the Claimant’s failure to comply with case-management orders. A recommendation that further stress would not assist recovery was not evidence of inability to attend.

4. The Tribunal had detailed knowledge of the procedural history and of earlier unsuccessful postponement applications based on substantially the same material. The Claimant had been invited to attend with further medical evidence, but did not do so. It was entitled to conclude that he had not proved that his absence was genuine or through no fault of his own.

5. Under rule 47 of the Employment Tribunals Rules of Procedure, the Tribunal considered the information available about the absence. There was no new relevant information and no practicable further enquiry required. Its conclusion that the Claimant had chosen not to attend, and had chosen not to provide means information, showed that it had considered the issue afresh.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Tribunal’s refusal to postpone the costs hearing and its decision to proceed in the Claimant’s absence.
• Employment Tribunal, Birmingham: At a costs hearing on 24 July 2017, the Tribunal proceeded in the Claimant’s absence and ordered him to pay costs of £19,733.15.