Philip Hall v Transport for London

Where a party has already obtained two postponements, Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, rule 30A(3), restricts the tribunal’s general case-management discretion. A further postponement may be considered only if a specified precondition, including exceptional circumstances, is established; it does not then follow that it must be granted.

Ill health may constitute exceptional circumstances, but the applicant bears the burden of demonstrating a genuine inability to participate. The tribunal must balance the applicant’s right to a fair hearing against the other party’s right to timely resolution and the public interest in efficient adjudication. It may proceed where suitable adjustments can secure a fair hearing and the evidence does not justify further delay.

The claimant, a former engineer, brought claims for disability discrimination and protected-disclosure detriment. The East London Employment Tribunal adjourned the part-heard merits hearing twice because of his health, but later refused a further postponement and an application for a litigation friend. The claimant did not continue to attend the resumed remote hearing. The tribunal proceeded with adjustments, heard the respondent’s remaining witnesses and dismissed all claims in a judgment sent on 4 June 2021.

The claimant appealed only the refusal to postpone. He contended that the tribunal’s delay in deciding his application for a litigation friend left insufficient time to obtain updated medical evidence before the hearing resumed. The central issue was whether the tribunal unfairly failed to take that matter into account when deciding to proceed.

1. Appeal dismissed. The Employment Appeal Tribunal held that the tribunal correctly approached the proposed third postponement under rule 30A(3) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. The claimant had obtained two earlier postponements. Exceptional circumstances, including ill health connected with a long-term condition or disability, could permit consideration of a further application, but did not require its grant.

2. The medical material before the tribunal did not establish that the claimant was medically unable to participate in the resumed remote hearing. The GP letter of February 2021 was reasonably optimistic concerning recovery from Covid and did not show that a further delay would improve the position. The claimant’s contemporaneous applications focused on capacity and appointment of a litigation friend, rather than on obtaining updated evidence for a postponement.

3. The tribunal did not err by failing to take account of an asserted disadvantage which the claimant had not raised before its decision. Although the delay between his statement and the tribunal’s response left only 12 days before resumption, he had been able to seek updated medical evidence after February 2021. The later GP letter would neither have rebutted the presumption of capacity nor addressed whether he could participate with adjustments.

4. The tribunal was entitled to find that exceptional circumstances had not been shown. It permissibly balanced the limited evidence of incapacity against the age of the allegations, the nine-month interruption of a part-heard trial, the prejudice of further delay, and uncertainty about any future hearing date. It also made practical proposals enabling participation, including questions submitted in advance or asked through another person. As the claimant had completed his own evidence, those measures could secure a fair hearing.

5. There was no failure to consider relevant matters, no reliance on irrelevant matters, and no perversity. The tribunal was therefore entitled to proceed in the claimant’s absence.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 26.
• East London Employment Tribunal: Following an eight-day, part-heard merits hearing, dismissed the claimant’s claims by a judgment sent on 4 June 2021. The Employment Appeal Tribunal upheld its refusal of a further postponement.