Leeks v Norfolk and Norwich University Hospitals NHS Foundation Trust

An appeal against an Employment Tribunal case-management decision remains an appeal on a question of law. The Employment Appeal Tribunal must not substitute its own view of fairness, proportionality or the appropriate adjustment merely because a disabled litigant is involved.

Reasonable adjustments, access to justice and Convention rights are important factors in the first-instance balancing exercise. A failure to make an adjustment may in an obvious case amount to a procedural irregularity. Otherwise, the appellate inquiry remains whether the Tribunal misdirected itself, omitted a material consideration, considered an irrelevant matter, acted perversely, or caused serious procedural unfairness.

A litigant relying on ill-health to obtain an extension or adjournment bears the burden of producing sufficiently specific medical evidence. The Tribunal may consider other evidence bearing on the asserted inability to comply or attend.

The claimant, a disabled former employee, brought a disability-discrimination claim. The Employment Tribunal ordered further particulars and later refused applications for a substantial extension, postponement of a preliminary hearing, and a telephone alternative. The claimant did not attend the hearing. The Tribunal struck out the claim and made a costs order.

On appeal, the claimant challenged the refusals of postponement and a telephone hearing, alleged that without-prejudice-save-as-to-costs material had been considered too early, and contended that she had insufficient notice of the costs application. She argued that disability and procedural fairness required the EAT to determine for itself what was proportionate, fair and just.

The central issue was whether disability-related adjustments to case management required a different appellate standard from the ordinary scrutiny for an error of law.

1. Appeal dismissed. The EAT rejected the proposed approach under which it would determine afresh whether an adjustment, postponement or telephone hearing was fair and proportionate. Its jurisdiction under Employment Tribunals Act 1996, section 21(1), is confined to questions of law.

2. Case-management decisions, including adjournments and procedural adjustments for disability, are subject to ordinary appellate scrutiny. The EAT may intervene where there is a legal misdirection, perversity, failure to consider a material factor, consideration of an immaterial factor, or serious procedural irregularity. The need to secure effective participation by a disabled litigant is an important factor in the balancing exercise. In an extreme and obvious case, failure to make an adjustment may itself constitute a procedural irregularity. It does not otherwise permit the EAT to remake the decision.

3. The approach in Pye was followed. The observations in Rackham favouring a proportionality analysis were obiter. The Northern Ireland Court of Appeal's approach in Galo, insofar as it required the appellate tribunal itself to determine procedural fairness rather than identify legal error, was not followed. O'Cathail and Riley remained binding.

4. The Tribunal was entitled to regard the claimant's medical evidence as insufficiently specific and substantially historic. A party asserting that illness prevents compliance with orders, or requires an adjournment or extension, bears the burden of adducing supporting medical evidence. The Tribunal could also take account of the claimant's ability to undertake other activities. There was no error in refusing a telephone case-management discussion in circumstances where nothing material had changed.

5. There was no factual basis for the assertion that without-prejudice-save-as-to-costs correspondence had been considered before costs arose. Although ability to pay is an important consideration on costs, the claimant had an opportunity to make submissions on the costs schedule and showed no resulting disadvantage. The costs order disclosed no error of law.

• Employment Appeal Tribunal: Appeal dismissed. The EAT upheld the Employment Tribunal's relevant case-management decisions and costs order.
• Employment Tribunal (Norwich): Employment Judge Postle struck out the disability-discrimination claim under Rule 37 and ordered the claimant to pay costs.