Z Sokolik v Kobre & Kim (UK) LLP

Where medical evidence recommends that a litigant should not attend the trial of their claim, an Employment Tribunal must take that information into account before dismissing the claim for non-attendance under rule 47. It cannot assume that the litigant was required to attend only a short hearing of a postponement application when the full merits hearing might still proceed.

The Tribunal may regard medical evidence as incomplete and may seek prompt clarification. It cannot, however, contradict evidence of mental ill-health merely because the litigant has sent coherent written correspondence. A failure to consider the available reasons for absence vitiates both the refusal of a postponement and a rule 47 dismissal.

The claimant brought claims of direct sex discrimination and victimisation arising from the termination of his short fixed-term employment. The London Central Employment Tribunal listed the full merits hearing for 13 April 2021.

Shortly before that hearing, the claimant sought postponement, adjustments and reporting restrictions. He supplied medical material concerning ADHD, anxiety, depression and worsening mental health. A doctor recommended two weeks away from work and from his hearing. The claimant did not join the remote hearing. The Tribunal refused postponement and dismissed the claims under rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

On reconsideration, the Tribunal maintained its decision. The claimant appealed both the dismissal and the refusal of reconsideration. The central issue was whether the Tribunal lawfully dealt with the medical evidence and the claimant’s non-attendance.

1. First appeal allowed on grounds two and three. The Employment Tribunal had a broad discretion over postponement, and it was entitled to regard the medical evidence as incomplete. It did not give a clear prognosis or address possible adjustments. The evidence nevertheless confirmed worsening mental-health symptoms and medical advice that the claimant should remain away from work and his hearing.

2. The Tribunal’s approach wrongly treated 13 April as only a short hearing of the postponement application. That assumed that the full merits hearing would not proceed, although the claimant had been told that the postponement application would be considered only at the hearing’s outset. He could not safely make that assumption, and the medical advice was that he should not attend the trial.

3. The Tribunal also erred by treating the claimant’s frequent and coherent emails as a basis for contradicting the medical evidence. As explained in Chang Tave, lucid written material could not displace uncontradicted medical evidence about an inability to attend. If the Tribunal required clarification, it could have sought further medical evidence, including during the four days allocated for trial, as contemplated in Teinaz.

4. Accordingly, in dismissing the claim, the Tribunal failed to take account of information available about the reasons for absence, contrary to rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Those errors also vitiated the refusal of postponement and were not cured on reconsideration. The assertion that the claimant had disobeyed a clear order was unfounded.

5. First appeal dismissed on ground one; second appeal dismissed. There was no error in leaving the late procedural applications to be addressed at the hearing’s outset. The reconsideration reasons were adequate. The technical difficulties at that remote hearing caused no demonstrated unfairness, and there was no real possibility of bias applying Porter v Magill.

6. The proceedings were remitted to the Employment Tribunal for onward case management, with composition to be determined by the Regional Employment Judge.

• Employment Appeal Tribunal: Allowed the appeal against dismissal under rule 47 on grounds two and three, dismissed ground one, and dismissed the appeal against the reconsideration judgment.
• London Central Employment Tribunal: Dismissed the claims for non-attendance under rule 47 in a judgment promulgated on 15 April 2021. It rejected reconsideration in a judgment promulgated on 8 October 2021.