Heidi Bennet v London Borough of Islington

On a renewed application to postpone a final hearing, a tribunal must assess the circumstances as they stand at that time. Where a claimant has lost their representative because of illness, the tribunal must consider whether the claimant can fairly conduct the hearing alone. This requires attention to the claimant’s disabilities, the complexity and length of the hearing, the realistic availability of replacement representation, and the consequences of proceeding.

A refusal may be unlawful where the tribunal treats the issue only as one about a missing witness statement and fails to consider a practicable short adjournment to obtain medical evidence directed to the claimant’s ability to represent themselves. The discretion remains subject to the other party’s interests and efficient adjudication, but must be exercised compatibly with the right to a fair hearing under article 6 of the European Convention of Human Rights.

The claimant appealed the employment tribunal’s fourth and final refusal, on the second day of a ten-day merits hearing, to postpone her claims of unfair dismissal, disability discrimination, protected-disclosure detriment and related complaints. The hearing later proceeded in her absence and the claims were dismissed.

The claimant had expected to be represented by a volunteer caseworker. On the renewed application he confirmed, supported by existing medical material, that he would not participate because of ill health. The claimant said that, given her mental-health conditions and dyspraxia, the complexity of the litigation and the absence of affordable replacement representation, she could not conduct the hearing herself. The central issue was whether the tribunal lawfully treated these matters as disclosing no material change from its refusal the previous day.

1. Appeal allowed. The employment tribunal erred in refusing the fourth postponement application. Although it could properly use its unchallenged decision of the previous day as its starting point, it had to evaluate the changed position on the second day.
2. The renewed application was not confined to the claimant’s failure to provide a witness statement. The representative had now confirmed that he would not act, so the tribunal had to consider whether the claimant could fairly represent herself throughout a substantial final hearing, including cross-examination and submissions. Her letter, fairly read, raised that wider issue. The psychiatric evidence gave substantial cause for concern that her admitted PTSD, depression, anxiety and dyspraxia would create difficulties beyond those ordinarily faced by a litigant in person.
3. There is no automatic rule governing a late loss of representation. The tribunal had to consider the reason for it, the practical impossibility of obtaining replacement professional representation without a postponement, its implications for the claimant, and all other relevant circumstances. Its earlier view that the representative might have participated with adjustments did not remove the need to address the consequences once he did not attend and would not represent her.
4. The tribunal also failed to consider a viable short adjournment to obtain medical evidence specifically on the claimant’s ability to represent herself. A ten-day listing made that option practicable. The existing psychiatric report gave reason to suppose that focused further clinical advice might be obtained. In light of the risk that proceeding would effectively determine the claimant’s claims, the article 6 fair-hearing implications, and the medical basis for the representative’s absence, no reasonable tribunal could find no material change and refuse a postponement outright.
5. The case was remitted for a fresh trial before a differently constituted employment tribunal.

• Employment Appeal Tribunal: allowed the appeal against the fourth refusal to postpone the merits hearing and ordered a fresh trial before a differently constituted tribunal: [2024] EAT 118.
• Employment Appeal Tribunal: at a rule 3(10) hearing, dismissed the appeal against the third postponement decision but permitted limited grounds challenging the fourth decision to proceed.
• Employment Tribunal: refused the renewed postponement application on 15 March 2022, proceeded in the claimant’s absence, and dismissed the substantive claims on 18 March 2022.