Morton v Eastleigh Citizens' Advice Bureau

Employment tribunals have wide case-management powers, but refusal of an adjournment is reviewable only for an error of law, including legal misdirection, perversity, or failure to consider a relevant matter. Under rule 30A(2) of the Employment Tribunal Rules of Procedure 2013, a postponement sought less than seven days before a hearing requires a specified consent-based ground, an act or omission of another party or the tribunal, or exceptional circumstances. The tribunal must balance efficient disposal and wasted costs against fairness and prejudice. A judge should rarely revisit an equivalent judge’s case-management decision absent material change, material omission or misstatement, or another substantial reason. A formal medical report is not invariably required where existing medical evidence and the claimant’s evidence are sufficient.

Ms Morton brought claims including disability discrimination following her dismissal by the respondent. At a preliminary hearing, the Employment Tribunal had to determine whether conditions other than binge eating disorder amounted to disabilities. An earlier direction contemplated a joint medical report, but a later judge considered that the issue could be decided on the existing evidence. The tribunal refused Ms Morton’s last-minute application to adjourn the hearing. The Employment Appeal Tribunal dismissed her appeal in decision UKEAT/0208/18/BA. The central issue before the Court of Appeal was whether the refusal involved an error of law, including failure to recognise exceptional circumstances or unfair prejudice.

Appeal dismissed. Lewison LJ gave the leading judgment. Underhill LJ agreed and added that the case-management history created no injustice.

1. A refusal to adjourn is a case-management decision. Under Employment Tribunal Rules of Procedure 2013, rule 29, the tribunal has a broad power to manage proceedings. The appellate court may intervene only for an error of law, including an error of legal principle or perversity, such as failure to consider a relevant matter or reliance on an irrelevant one. The approach in O’Cathail v Transport for London [2013] EWCA Civ 21 was applied.
2. Rule 30A(2) imposed a strict threshold because the application was made less than seven days before the hearing. The parties did not consent, and the court accepted that the application did not otherwise fall within the relevant statutory routes. The question was therefore whether exceptional circumstances existed.
3. The tribunal had to balance delay, wasted and irrecoverable costs, and the loss of hearing time against the requirements of a fair process and any prejudice caused by refusal. The issue was clear, the claimant knew the documents and medical material, and she had previously been directed to provide an impact statement.
4. A judge should rarely reverse a case-management decision made by a judge of equivalent jurisdiction on substantially the same material. Under Serco Ltd v Wells UKEAT/330/15, [2016] ICR 768, intervention ordinarily requires a material change of circumstances, a material omission or misstatement, or another substantial reason. Ms Morton had not appealed the earlier decisions. Employment Judge Kolanko was entitled to take account of the conflicting views and to agree with the later decisions that a joint report was unnecessary.
5. A formal expert report is not invariably required in disability cases. The existing health records, occupational health report and the claimant’s own evidence could fairly determine the remaining issues. The refusal was therefore neither legally erroneous nor perverse. The court also noted that the procedural argument concerning the earlier order had not been raised below, but addressed its merits in any event.

• Court of Appeal (Civil Division) dismissed the appeal against the Employment Appeal Tribunal’s decision.
• Employment Appeal Tribunal (Lavender J) dismissed the appeal against the refusal of an adjournment in UKEAT/0208/18/BA.
• Southampton Employment Tribunal refused the claimant’s application to adjourn the preliminary hearing.