T Kostakopoulou v University of Warwick & Ors.

In an interim-relief case, the Employment Tribunal must determine the application as soon as practicable. It may postpone the hearing only where special circumstances justify that course under Employment Rights Act 1996.

Case-management decisions are reviewable on appeal only if they fall outside the generous ambit of reasonable disagreement, or disclose an error of law. The Tribunal may proceed in a party’s absence where the available information clearly explains the absence and makes further enquiries unnecessary. A prior case-management order should not be varied in the interests of justice where there has been no material change of circumstances. Reconsideration is not required merely because a party remains dissatisfied with decisions properly made within that discretion.

The claimant, a university professor dismissed for gross misconduct, brought claims including an allegation of automatically unfair dismissal for making protected disclosures. She applied for interim relief.

After an initial postponement, the Tribunal listed the interim-relief hearing for 3 November 2020. Employment Judge Findlay refused the claimant’s late request for a further postponement. Employment Judge Dean proceeded in the claimant’s absence and refused interim relief. The claimant’s application to reconsider that decision was also refused.

The claimant appealed the decisions to refuse postponement, proceed in her absence, and refuse reconsideration. The central issue was whether the Employment Judges had made an error of law in exercising their case-management powers.

1. Appeal dismissed. The decisions to refuse a further postponement, proceed with the interim-relief hearing in the claimant’s absence, and refuse reconsideration were within the Employment Tribunal’s broad case-management discretion.

2. Under section 128 of the Employment Rights Act 1996, an interim-relief application must be determined as soon as practicable. Postponement is subject to the more restrictive requirement of special circumstances. The Tribunal was entitled to regard the statutory urgency, the prior delay, the claimant’s earlier indication that she would be ready seven days after service of the ET3, and the absence of a timely objection to the respondent’s earlier postponement as materially distinguishing the two applications.

3. The initial postponement for the respondent did not require an identical outcome for the claimant. The circumstances differed, including the limited delay sought by the respondent and its provision of dates for its established legal team. Applying the appellate restraint described in G v G, [1985] 1 WLR 647, the refusal of the claimant’s application was not outside the generous ambit of reasonable disagreement.

4. Employment Judge Dean complied with rule 47. Before proceeding, she considered the claimant’s correspondence, including the email stating unequivocally that neither the claimant nor her representative would attend. That information rendered further enquiries unnecessary.

5. Rule 29 did not require Employment Judge Dean to vary Employment Judge Findlay’s order. The later email disclosed no material change of circumstances. Nor did it establish special circumstances justifying a postponement on the hearing day.

6. The ordinary 14-day hearing-notice requirement did not apply to this interim-relief hearing. Section 128(4) imposed the relevant requirement concerning notice to the employer. Since the earlier decisions were lawful and no new matter showed a realistic prospect of variation or revocation, refusal of reconsideration under rule 72 was in the interests of justice.

• Employment Appeal Tribunal: appeal dismissed: [2022] EAT 120.
• Employment Tribunal: Employment Judge Findlay refused a further postponement of the interim-relief hearing on 2 November 2020. Employment Judge Dean proceeded in the claimant’s absence and refused interim relief in a decision sent on 17 December 2020. Employment Judge Dean refused reconsideration on 5 August 2021.