SUMMARY
PRACTICE AND PROCEDURE
Case management
Postponement or stay
The Employment Tribunal refused to postpone a multi-day hearing
in circumstances where the Claimant’s medical evidence indicated that he was
genuinely unwell and unfit to attend. There was a history of delay and
previous adjournments. Cases relating to decisions on adjournment applications
and to the need to ensure a fair hearing reviewed. The ET was found to have
erred and the appeal was allowed.
THE HONOURABLE MRS JUSTICE COX
Introduction
1.
Following a preliminary hearing earlier this year, the Claimant’s appeal
now proceeds on the sole issue of whether the Sheffield Employment Tribunal
properly exercised its discretion in refusing, on 4 and 5 July 2011, to
postpone the five‑day hearing listed for 4‑8 July 2011.
The appeal is therefore against the orders made on
4 and 5 July 2011, the written reasons for those orders being
sent to the parties on 21 July 2011 and 10 January 2012
respectively. Today the Claimant has had the benefit of assistance from
Mr Arora, from the Free Representation Unit, but until his representation before
us the Claimant has at all times been a self‑represented litigant. The
Respondents are represented by Mr Calvert. We are grateful to both
advocates for their assistance in a matter which we consider is not
straightforward.
The facts
2.
The relevant facts are these. John Beardshall, the Claimant, was a
teacher employed by Rotherham MBC, the First Respondent, at Brinsworth Comprehensive School. He lodged a claim at the Tribunal on
7 August 2009 complaining, essentially, of disability discrimination,
detriment on the grounds of trade union membership or activities and unfair
dismissal. So far as disability discrimination is concerned, he referred to
suffering from severe anxiety and depression and stated that his mental
impairment constituted a disability within the meaning of the Disability Discrimination Act 1995,
which was then still in force. His allegations related to events extending
over a period of several years before August 2009. The Respondents denied
all the allegations in their detailed response filed in September 2009. It
is apparent that the case involved extensive factual dispute.
3.
The issues were clarified at a Case Management Discussion (CMD) on
14 December 2009, attended by both parties. Directions were given in
respect of various matters, including (1) the obtaining of a medical report on
the issue of disability, the Respondents not admitting at that stage that the
Claimant had a disability within the meaning of the Act; and (2) requiring the
Claimant to prepare and serve Further Particulars of his claims by 12 February 2010.
The Claimant complied with those directions.
4.
By the time of the next CMD on 16 April 2010, once again
attended by both parties, there was a detailed and helpful report from a
consultant psychiatrist, Dr Singh, on the issue of disability, dated 12 April 2010.
The Respondents wished to consider it, the report having reached them only
recently, and they were granted seven days to do so. Comprehensive directions
were given to progress the matter for a hearing, which was fixed to take place
on 27‑30 September 2010 subject to the Respondents confirming witness
availability, which they soon did.
5.
The report from Dr Singh confirmed that the Claimant had both
physical impairment (hypertension) and mental impairment (post‑traumatic
stress disorder with concomitant anxiety and depression) which impairments had
substantial and long‑term adverse effects on his ability to carry out
normal day‑to‑day activities and were described as ongoing. These
effects were set out in some detail in Dr Singh’s report. The Claimant’s
treatment plan included medication and therapeutic sessions. Dr Singh also
referred to the Claimant’s difficulties at work having contributed to his
condition and he made this observation:
“If the circumstances contributing to his mental impairment are
not addressed despite being on medication, he is at risk of deterioration in
his mental health. Resolution and closure of ‘traumatic’ experiences are vital
elements in restoring his health.”
6.
The Respondents conceded, following consideration of this report, that
the Claimant was a person with a disability within the meaning of the Act. A
further CMD by telephone took place on 20 August 2010, by which time
there had been a dispute as to disclosure, the Claimant had not yet served his
list of documents, and neither party had served their witness statements. The
Employment Judge postponed the hearing listed for September and set a new
timetable. The hearing was then re‑listed for four days from 1‑4 March 2011.
7.
On 3 February 2011 the Respondents requested a postponement of this
hearing on the basis that they needed more time to prepare their witness
statements. The Claimant had served his own lengthy witness statement on 13
January, and the Respondents had identified 12 individuals whom they wished to
call as witnesses, to deal with the large number of allegations being made by
the Claimant. The Respondents also suggested that a four‑day hearing
would not allow adequate time to hear the case.
8.
The Claimant objected to this request for a postponement, indicating his
wish not to delay and to proceed with his claim. His objection was noted, but
the Respondents’ request was granted on 14 February and the March hearing
was postponed to a date to be fixed. By notice sent to the parties on
16 February the hearing was re‑listed for five days from 4‑8 July 2011.
The notice sent to the parties contained the standard information that unless
there were exceptional circumstances no application for a postponement would be
granted; and that any such application should be made in writing.
9.
On 13 June 2011 the Claimant submitted a written request for a
postponement of the July hearing. He identified two reasons for this request. First,
he referred to two family bereavements, including the sudden death of his niece,
which had happened only days before the service of 14 substantial witness
statements from the Respondents in about mid‑May. The Claimant said that
he needed more time to consider all this evidence and that he had not yet been
told how many witnesses the Respondents intended to call. His second reason
for requesting a postponement was his state of health. The Claimant said that
his health had recently deteriorated due to the combination of family
bereavements and the increased pressure upon him caused by substantial amounts
of material having recently been served by the Respondents, and insufficient
time for him to prepare for the hearing. The Claimant expressed regret for
having to make the request.
10.
The Respondents opposed this request, stating that the Claimant had now
had their witness statements for some weeks, that the bereavements had also
happened some weeks ago, and that there was no medical evidence to support the
Claimant’s application. In his response on Friday, 17 June the Claimant
repeated the reasons for his request and stated that he had been doing his best
to comply with Tribunal orders and prepare to represent himself at the
hearing. He also referred to his disability and his current medical condition,
which he said had been exacerbated as a result of the lack of time he had to
deal with the substantial quantities of statements and documents, coupled with
the bereavements to which he had referred. In this respect, and responding to
the Respondents’ point that there was no medical evidence in support of his
application, the Claimant said as follows:
“I see my GP every two weeks. I have a scheduled psychiatrist
appointment on 12 July. I am seeing my GP on Monday and will ask her to write
a report providing the contemporary medical evidence.”
11.
By order dated Monday, 20 June 2011 the Employment Judge
refused the Claimant’s application for a postponement of the hearing. On
22 June the Claimant renewed his application and attached a letter from
his GP, Dr Wastling, dated Monday, 20 June, supporting the
request for an adjournment. So far as is relevant, the GP said as follows in
that letter:
“I would like to support Mr John Beardshall’s request
for a postponement of his tribunal hearing. He continues to be depressed this
means he finds it very difficult to concentrate. Correspondence, letter
writing and all tasks take him a great deal longer to complete than if he were
not depressed.
The 14 witness statements that he was sent mid May arrived at a
difficult time for him when he was already dealing with two family
bereavements. The additional stress worsened his mental health causing sleep
to worsen necessitating the prescribing of a short course of sleeping tablets.
Allowing more time would help Mr Beardshall prepare more
fully and deal with his depression and bereavements.”
12.
The Respondents responded in writing on 29 June opposing the
application for an adjournment. They stated that they were already aware of
the Claimant’s mental‑health issues, that this was not a new condition,
and that the Claimant had had ample opportunity to deal with their witness
statements. In respect of the medical evidence the Respondents made the
following observations:
“The medical evidence does not say that the Claimant is ‘unfit’
for the hearing, but rather that he is experiencing difficulties which are
largely due to the Claimants conduct in making unstructured allegations, which
have generated a large amount of paperwork.
The Respondent has had no opportunity to ask questions of the
Doctor, exploring his opinion. ..…
Any delay so late in the day will cause particular prejudice for
the Respondents and their witnesses, particularly in circumstances where there
is no indication given of whether the Claimant will be able to deal with the
matter in the future.”
13.
The Claimant wrote to the Tribunal again on 29 June, with the
information that the deterioration in his medical condition had made him “too
ill at the moment to attend the five day hearing set for Monday 4 July”.
He also stated that he had now been given a doctor’s appointment on 4 July
for blood tests to be taken. The Tribunal sent a letter, dated 29 June,
advising the Claimant that if he failed to attend the Tribunal on 4 July
his claim could be struck out. On 30 June the Employment Judge
considered the updated position and the most recent communications, and confirmed
his decision to refuse the Claimant’s request for an adjournment.
14.
On 30 June the Respondents made a formal application to strike out
part of the Claimant’s claim on time points relating to the disability
discrimination and trade union activities claims. On Friday, 1 July the
Claimant sent an email timed at 17.29, and therefore after the Tribunal office
had closed, enclosing a further letter from Dr Wastling. This letter said
as follows:
“I can confirm that Mr Beardshall is not well enough to
attend the hearing on Monday 4 July 2011. In my opinion,
pressing him to attend the Tribunal under the circumstances will severely
affect his health.”
15.
The Claimant did not expressly say that he was making a further
application for a postponement, but the Tribunal treated his email as such an
application in the circumstances. The Claimant no doubt took the view that
this was medical evidence confirming his unfitness to attend the hearing,
which, as was pointed out by the Respondents, had not hitherto been provided.
16.
The Respondents were informed of this application and opposed it, making
a counter‑application for the claim to be struck out for a failure to
prosecute the case and for what was alleged to be the Claimant’s unreasonable
conduct.
17.
On 4 July the members of the Tribunal due to begin the hearing
considered the matter and decided to refuse the Claimant’s further application
for a postponement. By their letter to the Claimant sent on 4 July the
Tribunal informed him:
“The Tribunal has decided to hear your claims, as to postpone
the Hearing for a third time would not be just or proportionate, and wouldn’t
save cost or deal with matters expeditiously.
The Tribunal has taken today as a reading day, and will resume
tomorrow at 10:00am
The Respondents’ application for a strike out has been refused.”
18.
Pausing there, we observe that nothing was said in that letter to the
Claimant to indicate that Dr Wastling’s letters were seen as being in any
way insufficient for the purposes of the Claimant’s applications for a
postponement, or that more information was required.
19.
The Claimant then sent a further email to the Tribunal in the early
hours of 5 July, which stated, so far as is material, as follows:
“Further to the two letters of my GP, the Barnsley Mental Health
Access Team have been made aware by my doctor of the situation and are
monitoring the situation and have arranged for an urgent psychiatric
appointment on Thursday 7 July 2011.
This is the first postponement requested by the claimant. ..…
Under the circumstances, regarding granting a postponement of a
tribunal hearing, it is reasonable for a tribunal to expect the general
practitioner to be able to state that the claimant is not well enough to attend
and give evidence at the present hearing.
Do not the cases of Andreou v The Lord Chancellor’s Department
[2002] IRLR 728, CA and the case of Teinaz v London Borough of Wandsworth
[2002] IRLR 721, ICR 1471, CA suggest that the general practitioner is able to
state that the claimant is not well enough to attend the hearing?
To grant a postponement so fair and proper consideration can be
given to the substantial quantity of material supplied in the 14 witness
statements, would be proportionate and more expeditious. A postponement
allowing time for the health of the claimant to stabilise again and attend a
fair hearing where all parties are able to be present is also likely to be the
most expeditious way of saving costs.”
20.
Mr Calvert points out, correctly, that the Claimant said nothing
about the length of time for which he would need there to be a postponement.
When the Tribunal reconvened on the morning of 5 July, this most recent
renewed application for a postponement was also refused. The Tribunal then
proceeded to hear and determine the Claimant’s claim in his absence. Having
read the witness statements served by both sides, they heard evidence from five
of the Respondents’ witnesses and heard closing submissions from their
advocate. By their Judgment, promulgated on 28 July 2011, they
dismissed all the Claimant’s claims, deciding relevant issues of fact in the
Respondents’ favour. The Claimant’s subsequent application for a review of
their Judgment was refused.
21.
We turn, therefore, to the Tribunal’s written reasons for refusing the Claimant’s
applications to adjourn. These appear fully from the reasons sent to the
parties on 21 July 2011, concerning the 4 July application, and
on 10 January 2012, concerning that of 5 July. In relation to
the 4 July decision, after setting out the history, the Tribunal made the
following findings at paragraphs 29 and 30:
“29. The Claimant has supplied no medical evidence that he will
ever be fit to attend a Hearing.
30. This is the third time this case has been listed for a multi‑day
Hearing. The Tribunal accepts that one of the postponements was due to the
request of the Respondent. The medical report prepared by
Dr Veena Singh, the Claimant’s Consultant, dated
12 April 2010 identifies that resolution and closure of the
Claimant’s ‘traumatic’ experiences are vital elements in restoring his health.”
22.
After referring to the overriding objective and the factors to which
they need to have regard in dealing with cases justly, they then continued as
follows at paragraphs 31‑36:
“31. The Tribunal considered that the Claimant’s conduct during
the proceedings had caused a considerable amount of the delay, although the
Respondents were not entirely blameless for the delays in these proceedings.
32. The Tribunal did not doubt that the Claimant was ill, but
could not make a reasonable assessment of when the Claimant may be fit to
attend the Hearing. His own Consultant Psychiatrist’s report seemed to
indicate that he would not be able to recover until the matters that he feels
were the root cause of the deterioration of his health had been addressed.
33. The Tribunal was also mindful of the requirement to ensure
that the parties were on an equal footing. The First Respondent has now been
defending these proceedings for nearly two years. The Third Respondent,
Mr Gray has also had this matter hanging over his head for a considerable
period of time. The allegations that the Claimant makes go back to 2005. We
have to consider whether, if we grant a further postponement, we are
prejudicing the possibility of a fair trial and we have to consider the effect
upon of a further postponement upon the Respondents, particularly Mr Gray.
34. On balance, therefore, whilst acknowledging that the
Claimant is ill, we can see no reasonable prospect of this Hearing actually
taking place in the foreseeable future, so our decision is to refuse the
application for postponement and to proceed with the case.
35. We will hear no evidence today. We will read all of the
witness statements and the bundle provided by the parties and will start the
substantive hearing tomorrow morning at 10.00 a.m. A brief note of our
decision to refuse the Claimant’s application for postponement will be e‑mailed
to him this afternoon.
36. So far as the Respondent’s application for strike out is
concerned, we cannot see that a fair trial is not possible, yet. We have to
consider the Claimant’s conduct in the light of his illness and therefore
cannot find that he has acted unreasonably in the conduct of the proceedings.
We consider that the fairest way forward that best upholds the overriding
objective is to proceed as indicated above.”
23.
In relation to the 5 July decision, after considering the matter
again and directing themselves to the two authorities to which the Claimant had
referred in his email of 5 July, the Tribunal set out their conclusions at
paragraph 5:
“5.1 The Claimant had still not provided any medical evidence of
when he might be fit to attend the Hearing.
5.2 We distinguished the Claimant’s application from the Teinaz
case because, unlike that case, the Tribunal was not making its own
determination of whether or not the Claimant was too ill to attend the
Hearing. We accept that he was too ill to attend the hearing.
5.3 We distinguish the Claimant’s application from the Andreou
case on the basis that our decision to refuse the postponement is not based on
the Claimant’s previous history of failing to comply with Tribunal orders
(although the Claimant had failed to comply with previous Tribunal orders). We
were guided by the words of Peter Gibson LJ:–
‘In deciding whether to refuse an adjournment, an
Employment Tribunal has to balance a number of facts, including fairness not
only to the applicant, but also to the Respondent. All accusations of … discrimination
are serious for both the victim and those accused of the allegations, and it is
rightly considered that such complaints must be investigated promptly. The
Tribunal also has to take into account the fact that other people are waiting
to have their cases heard.’
5.4 Whilst the circumstances in this case are not the same as
those in Andreou, where the Claimant was given the opportunity to
present the Tribunal with additional medical evidence, we are mindful that if
we granted the application for postponement, we would be postponing this five
day case for the third time, thereby disadvantaging other litigants.
5.5 Although it was the first application for postponement by
the Claimant, one of the previous postponements was largely due to the failure
to comply with the Tribunal’s Orders. The matter could not be relisted before
January 2012.
5.6 The Claimant had had sufficient time to prepare for the
Hearing and, particularly, to consider the respondent’s witness statements.
5.7 The Claimant’s analysis of the effect of his application on
the overriding objective was rejected as a postponement would not be
proportionate or save time or cost and we had no evidence of when the Claimant
would be fit to attend a Hearing. Without an indication of when the Claimant
would be fit to attend, the Tribunal couldn’t find that a ‘fair Hearing’, as
defined by the Claimant: one at which he would be in attendance, would be
possible.”
The law
24.
Applications for postponements of multi-day Employment Tribunal hearings,
due to a party’s ill‑health, pose difficult problems for Tribunals and
for the other party, as the law reports testify. We considered a number of
authorities, two of which (to which the Claimant himself referred) are
longstanding and well known.
25.
In Teinaz v Wandsworth LBC [2002] ICR 1471 the applicant
sought an adjournment of the hearing of his claim one week before it was due to
start. He enclosed a medical certificate, which stated that due to severe
stress he had been advised to stay away from work for two weeks and not attend
court. The Tribunal clearly viewed this evidence with some scepticism. They
refused the adjournment, referring to the claimant as having chosen not to
attend the hearing. They went on to hear and dismiss his complaints. The EAT
allowed the applicant’s appeal. Dismissing the respondents’ appeal, the Court
of Appeal emphasised that appellate bodies will be slow to interfere with
discretionary case management decisions by courts or tribunals, and that
interference should only be on limited grounds. Such grounds were said to
include those where the Tribunal had taken into account a consideration that
should not have been taken into account, or had failed to take into account a
relevant factor. At paragraphs 20‑22 Peter Gibson LJ said
this, in passages that have frequently been cited in subsequent decisions:
“20. Although an adjournment is a discretionary matter, some
adjournments must be granted if not to do so amounts to a denial of justice.
Where the consequences of a refusal of an adjournment are severe, such as where
it will lead to the dismissal of the proceedings, the tribunal or court must be
particularly careful not to cause an injustice to the litigant seeking an
adjournment. …..
21. A litigant whose presence is needed for the
fair trial of a case, but who is unable to be present through no fault of his
own, will usually have to be granted an adjournment, however inconvenient it
may be to the tribunal or court and to the other parties. That litigant's
right to a fair trial under Article 6 of the European Convention on Human
Rights demands nothing less. But the tribunal or court is entitled to be
satisfied that the inability of the litigant to be present is genuine, and the
onus is on the applicant for an adjournment to prove the need for such an
adjournment.
22. If there is some evidence that a litigant is
unfit to attend, in particular if there is evidence that on medical grounds the
litigant has been advised by a qualified person not to attend, but the tribunal
or court has doubts as to whether the evidence is genuine or sufficient, the
tribunal or court has a discretion whether or not to give a direction such as
would enable the doubts to be resolved. Thus, one possibility is to direct
that further evidence be provided promptly. Another is that the party seeking
the adjournment should be invited to authorise the legal representatives for
the other side to have access to the doctor giving the advice in question. The
advocates on both sides can do their part in assisting the tribunal faced with
such a problem to achieve a just result. I do not say that a tribunal or court
necessarily makes any error of law in not taking such steps. All must depend
on the particular circumstances of the case. I make these comments in recognition
of the fact that applications for an adjournment on the basis of a medical
certificate may present difficult problems requiring practical solutions if
justice is to be achieved.”
26.
Shortly afterwards the Court of Appeal considered another ‘adjournment
refusal’ case in Andreou v Lord Chancellor’s Department [2002] IRLR 728. The applicant in a hearing listed for ten‑days sought a
postponement ten days beforehand on the grounds of ill‑health. She
enclosed a GP certificate, which confirmed that she was suffering from anxiety
and stress and that she should not work for 13 weeks, but said nothing about
whether she was fit to attend the hearing. The Tribunal refused that
application but said that it could be renewed at the hearing. The applicant’s solicitor
renewed the application at the hearing on the basis that the applicant was ill
and could not attend. The Tribunal concluded that they could not decide the
matter on the basis of the medical evidence that they had. They adjourned the
hearing for one week and ordered the applicant to provide a medical report by a
stated time, giving answers to four specific questions relating to the nature
of her illness and her fitness to attend and give evidence during a ten‑day
hearing. They made it clear that at the reconvened hearing, depending on the
contents of that medical report, they would consider the employer’s application
to strike out the claim and that therefore the applicant should be prepared to
show cause at that hearing why her complaint should not be struck out. The
applicant was plainly on notice as to what lay ahead if there was a failure to
comply with those directions.
27.
Shortly before the deadline the applicant presented a faxed report from
her GP, which in the most part was in precisely the same terms as the earlier
report, and which failed to answer the four specific questions posed by the
Tribunal. The following day a letter was sent to the applicant from the
Tribunal informing her of the defects and stating that the judge was
considering whether to strike out her application. She was warned that if she
wished to give reasons why this should not be done, she should be prepared to
do so at the hearing. The applicant did not attend the hearing when it
resumed. Her solicitor attended solely for the purpose of renewing the
application for an adjournment. The Tribunal concluded that the applicant had
failed to provide the additional medical evidence, as required by the order,
and that it was not possible to infer from the available evidence that her
illness was serious. It therefore refused the application for an adjournment
and ordered that the claim be struck out.
28.
The EAT allowed the applicant’s appeal against that decision, but the
Court of Appeal allowed the employer’s appeal and restored the decision of the
Employment Tribunal. Once again, Peter Gibson LJ reiterated the
discretionary nature of such a decision, and he set out some of the passages in
Teinaz to which we have already referred. He emphasised, at
paragraph 41, that the circumstances in the Andreou case
were different from those in Teinaz. The original medical
certificate did not address the question of the applicant’s fitness to attend
the hearing, and he concluded as follows at paragraphs 41 and 42
of the Judgment:
“41. The Tribunal adopted the sensible course of giving
Mrs Andreou a further limited opportunity of making good the deficiencies
in her evidence in support of her application for an adjournment. Further, it
helpfully spelt out what information was required. … Moreover, the Tribunal
was at pains to point out that on 13 November the Tribunal would also
consider the employer’s application to strike out. Mrs Andreou and her
representative could have been in no doubt as to what might happen if the medical
report which was to be produced in accordance with the Tribunal’s order did not
satisfy the Tribunal.
42. The evidence produced just within the deadline was to my
mind a woefully inadequate compliance with the Tribunal’s order.
Mrs Andreou had been ordered to produce a medical report stating in detail
four matters; she had not in fact complied with any of those requirements.
Dr Pal’s medical report and letter did not state in detail or at all the
nature of and prognosis for Mrs Andreou’s illness. Dr Pal did not attempt
to provide the details required in paragraphs 2 to 4 of the
order. …”
29.
Peter Gibson LJ went on to describe the further defects in the
evidence and then considered the parties’ submissions, concluding as follows at
paragraphs 45 and 46:
“45. Mrs Andreou in seeking an adjournment on medical grounds
should then have put the relevant medical evidence before the Tribunal to
justify the adjournment which she sought. It is not as though she was
suffering from some new ailment which had suddenly afflicted her at that
point. She had been given a further opportunity to make good the failure to
provide proper medical evidence, having been warned by the earlier decision
that what had been put in front of the Tribunal in the form of the medical
certificate was inadequate. She had obtained a week’s adjournment. I do not
see that the Tribunal can be shown to have acted in a perverse way in
concluding that she had had time to produce the relevant evidence. What was
crucial was whether or not Mrs Andreou was fit enough to attend the
Tribunal hearing, a matter normally within the competence of any doctor. …
46. The Tribunal in deciding whether to refuse an adjournment
had to balance a number of factors. They included not merely fairness to Mrs
Andreou (of course, an extremely important matter made more so by the
incorporation into our law of the European Convention on Human Rights, having
regard to the terms of Article 6): they had to include fairness to the
respondent. All accusations of racial discrimination are serious. They
are serious for the victim. They are serious for those accused of those
allegations, who must take very seriously what is alleged against them. It is
rightly considered that complaints such as this must be investigated, and
disputes determined, promptly; hence the short limitation period allowed. This
case concerned events which took place very many years ago, well outside the
normal three months limitation period. The Tribunal also had to take into
account the fact that other litigants are waiting to have their cases heard. It
is notorious how heavily burdened employment tribunals are these days. Fairness
to other litigants may require that indulgences given to those who have had the
opportunity to justify an adjournment but have not taken that opportunity
adequately are not extended. It was a matter of particular concern that no
indication was given in the evidence of Mrs Andreou either as to when the
medical evidence which she required from the consultant would be available, nor
as to when it might be that this case could come on for trial. Viewing the
case in the round and considering all the circumstances referred to by the
Tribunal, I cannot see how it could be said that in refusing the application
the Tribunal was perverse or otherwise plainly wrong in refusing a further
adjournment.”
30.
In resisting this appeal Mr Calvert places considerable reliance on
the balancing exercise to which Peter Gibson LJ referred at
paragraph 46 and which he submits the Tribunal in the present case properly
conducted.
31.
The issues raised in cases where an application is made to postpone a
hearing on the grounds of ill-health were recently reconsidered by this Appeal
Tribunal in the case of O’Cathail v Transport for London [2012] ICR 561. The brief facts were that the claimant, who suffered from
anxiety and depression, brought a number of disability discrimination claims.
At the start of the hearing of one of those claims, in which he was
representing himself and which was listed for eight days, the Tribunal were
faced with an application for an adjournment by the claimant, supported by a
doctor’s letter that stated he had been in hospital with a respiratory
infection and had been advised to rest for a week and was unfit to attend the
hearing. The Tribunal refused the application, deciding that in view of the
overriding objective to deal with cases justly, expeditiously and with a saving
of expense it would be more unfair not to proceed with the hearing than it
would be to adjourn it. The factors taken into account by the Tribunal
included the fact that the case was stale to the point where further delay would
disadvantage both parties; that the claimant’s other claims were being delayed
and considerable expense had already been incurred; that the matters at issue
were of relatively low value; and that the claimant might be well enough to
attend in couple of days. The claimant then made a further application for an
adjournment, sending another letter from his doctor, stating that he was unfit
to work or to attend the Tribunal for a period of two weeks. That application
was also refused. The hearing then took place in his absence, over two days,
and the Tribunal dismissed the claims, deciding issues of fact in the
employer’s favour.
32.
The EAT allowed the Claimant’s appeal. In addition to the cases of Teinaz
and Andreou, the EAT referred in their judgment to two more
recent decisions of the Court of Appeal, relating to the test to be applied by
an appellate court when reviewing a decision concerning procedural fairness.
Neither decision was concerned with proceedings before Employment Tribunals,
but the EAT considered, and we agree, that the principles established in those
cases are fundamental and clearly of general application. We should therefore
have regard to them in this case.
33.
In Terluk v Berezovsky [2010] EWCA Civ 1345 the
Court of Appeal considered a Judge’s refusal to adjourn a civil trial in order
to give one party a further opportunity to obtain legal representation. At
paragraphs 18‑20 of his judgment Sedley LJ said as follows:
“18. Our approach to this question is that the
test to be applied to a decision on the adjournment of proceedings is not
whether it lay within the broad band of judicial discretion but whether, in the
judgment of the appellate court, it was unfair. In Gillies v Secretary of
State for Work and Pensions [2006] UKHL 2, Lord Hope said (at §6):
‘[T]he question whether a tribunal ... was acting in breach
of the principles of natural justice is essentially a question of law.’
As Carnwath LJ said in AA (Uganda) v Secretary of State for
the Home Department [2008] EWCA Civ 579, §50, anything less would be a
departure from the appellate court's constitutional responsibility. This ‘non-Wednesbury’
approach, we would note, has a pedigree at least as longstanding as the
decision of the divisional court in R v S W London SBAT, ex parte Bullen
(1976) 120 Sol. Jo. 437; see also R v Panel on Takeovers, ex p Guinness PLC
[1990] 1 QB 146, 178G-H per Lord Donaldson (who had been a party to the Bullen
decision) and 184 C-E per Lloyd LJ. It also conforms with the jurisprudence of
the European Court of Human Rights under article 6 of the Convention – for we
accept without demur that what was engaged by the successive applications for
an adjournment was the defendant's right both at common law and under the ECHR
to a fair trial.
19. But, as Lord Hope went on in his next sentence in Gillies to
point out, the appellate judgment
‘requires a correct application of
the legal test to the decided facts …’
Thus the judgment arrived at at first instance is not eclipsed
or marginalised on appeal. What the appellate court is concerned with is what
was fair in the circumstances identified and evaluated by the judge. In the
present case, this is an important element.
20. We would add that the question whether a procedural decision
was fair does not involve a premise that in any given forensic situation only
one outcome is ever fair. Without reverting to the notion of a broad
discretionary highway one can recognise that there may be more than one
genuinely fair solution to a difficulty. As Lord Widgery CJ indicated in Bullen,
it is where it can say with confidence that the course taken was not fair that
an appellate or reviewing court should intervene. Put another way, the
question is whether the decision was a fair one, not whether it was ‘the’ fair
one.”
34.
In the case of Osborn and Anor v The Parole Board
[2010] EWCA Civ 1409, the issue before the Court was the fairness of the
decisions of the Parole Board to refuse oral hearings to serving prisoners. As
the EAT point out in O’Cathail, the approach of the Court of
Appeal in Terluk was expressly approved and then followed by all
three members of the Court of Appeal. The EAT concluded that, while in both
the cases of Teinaz and Andreou there is language
suggestive of a broad discretionary test, this is implicitly subject to the
fundamental principles of fairness enunciated in both Terluk and Osborn
relating to the fundamental requirement for a fair hearing. At
paragraphs 31‑37 the EAT said as follows:
“31. In our judgment the starting point must be
that the law requires a fair hearing to be afforded to parties where (as in
tribunal proceedings) their civil rights are determined. This requirement
flows from the common law, is reinforced by article 6 of the European
Convention, and is a minimum requirement. Whether a tribunal has met this
fundamental minimum requirement is a question of law.
32. Decisions whether to grant or refuse
adjournments arise in a variety of contexts. Most such decisions will not
imperil the fairness of the proceedings as a whole.
33. Sometimes, as in Carter v Credit
Change Ltd, the question is essentially about the order in which
proceedings will take place. The postponement or advancement of one set
of proceedings over another will not usually imperil the fairness of either set
of proceedings. Even where the decision is to grant or refuse an
adjournment of a hearing at relatively short notice, it will not necessarily
imperil the fairness of the hearing. Parties who engage in litigation
cannot expect adjournments except for pressing reasons; and hearings are
capable of accommodating many forms of disadvantage, real or perceived, without
being unfair.
34. In such cases, the Appeal Tribunal, which has
jurisdiction only in respect of questions of law, will not intervene unless it
is demonstrated that the tribunal has erred in law in granting or refusing the
adjournment. The principles are well known. It must be shown that
the tribunal acted upon wrong legal principles; or left out of account that
which it was essential in law to take into account; or relied upon that which
was irrelevant in law; or reached a decision outside the ambit within which
reasonable disagreement is possible.
35. There are however some decisions to grant (or
more usually refuse) an adjournment which imperil the fairness of the
proceedings as a whole. Where this is a ground of appeal, the Appeal
Tribunal must look for itself to see whether the effect of the decision has
been to deny a fair hearing to the appellant.
36. This, it seems to us, is the effect of Terluk
and Osborn & Clark. We think that Peter Gibson LJ, in
paragraph 21 of Teinaz, acted upon the same principle. Although,
in both Teinaz and Andreou there is language suggestive of a
broad discretionary test we think this is implicitly subject to the fundamental
principle which we have identified.
37. We emphasise that, as Sedley LJ said in Terluk, there
may be more than one fair solution to a difficulty. The question is
whether the decision is a fair solution, not whether it is the fair
solution. Teinaz and Andreou continue to provide valuable
guidance as to what is fair. Thus Teinaz contains guidance to
tribunals as to the manner in which such disputes may be addressed by giving
directions for further evidence; and Andreou is an example of a case
where it was fair for the tribunal to proceed, when it had not received
evidence for which it had given directions.”
Submissions and discussion
35.
We entirely agree with that analysis. Mr Arora, appearing for the
Claimant, relies upon it in this case in submitting that the refusal of the
Claimant’s requests for postponements had decisive, indeed disastrous,
consequences for his case; and that the Tribunal erred in law in denying this
Claimant a fair hearing. We consider that the denial of a fair hearing is
really the same as the denial of justice referred to by
Peter Gibson LJ in Teinaz. Such a denial would almost
certainly involve an unreasonable exercise of the discretion to which the Court
of Appeal referred in both Teinaz and Andreou.
36.
Mr Calvert, for the Respondents, accepts that the denial of justice
and the holding of a fair hearing should be the focus, but he submits that in
all the circumstances of this case the Tribunal did reach a fair decision and
that we should not interfere.
37.
We turn, then, to the facts of the present case, in order to determine
whether the effect of the Tribunal’s decision has been such as to deny this
Claimant a fair hearing and to amount to a denial of justice.
38.
We note, first, that the Tribunal did not challenge or question the
medical evidence placed before them by the Claimant. In their first set of reasons
they stated expressly that they did not doubt that this Claimant was ill, and
it is implicit in their reasons that they acknowledged that he was unable to
attend the hearing because of that illness. There is an express finding to
this effect, in any event, at paragraph 5.2 of the second set of reasons.
39.
The effect of the medical evidence in Dr Wastling’s letters of
20 June and 1 July was that this Claimant’s depression and poor mental
health had been exacerbated following service of the Respondents’ witness
statements in about mid‑May, when he was already coping with family
bereavements and the additional stress that those events caused. The result
was that he was not well enough to attend the hearing on 4 July and,
further, pressing him to attend the hearing would severely affect his health.
We agree that the Tribunal had to proceed upon the basis of the medical
evidence before them.
40.
The Tribunal’s reasons for refusing the postponement, having regard to
the overriding objective, included the history of the litigation, the previous
delays in the case and the needs of other litigants. However, they found at
paragraph 31 of their first set of reasons that both parties bore
responsibility for the previous delays. One of the previous postponements had
been granted at the request of the Respondents, which was opposed by the
Claimant. To the extent that the Claimant was found to have caused a
considerable amount of the delay and thus, on occasion, had not properly
complied with Tribunal orders, the Tribunal acknowledged at paragraph 36
that his conduct had to be considered in the light of his illness. They could
not find in those circumstances that he had acted unreasonably in the conduct
of the proceedings. Further, while recognising that the Respondents, and in
particular the individual Respondent, had had this matter hanging over them for
almost two years, they concluded that they had not yet reached a stage where a
fair trial of the issues was not possible.
41.
There is no dispute, however, that the Tribunal’s main reason for
refusing the Claimant’s application for a postponement was the view they took
as to his medical condition. Mr Arora’s first submission, relying on Teinaz
and O’Cathail, is that the starting point in such cases is that a
litigant who is genuinely unable to attend a hearing through illness should be
granted a postponement, no matter how inconvenient it may be. In this case the
medical evidence was clear and unambiguous, and it was accepted as genuine.
The Tribunal were in no doubt that the Claimant was genuinely ill and unfit to
attend the hearing. The Tribunal’s refusal to postpone the hearing therefore
imperilled the fairness of the proceedings as a whole and had disastrous consequences
for this Claimant. The refusal of this Claimant’s applications was therefore
plainly wrong and the Claimant was denied a fair hearing.
42.
Mr Calvert submits, however, that the matter does not end there.
Unlike the case of Mr O’Cathail, the medical evidence regarding this
Claimant indicated that his ill‑health was directly related to his
anxiety and depression, and therefore to the disability underpinning his
claims. The medical evidence before the Tribunal was not only the
correspondence from Dr Wastling, but also the report of Dr Singh. On
all that evidence, Mr Calvert submits that the Tribunal were entitled to
conclude that there was no evidence before them as to when this Claimant would
be fit to attend a hearing in the future. The evidence of Dr Wastling, he
contends, effectively confirmed Dr Singh’s concerns as to what would be
likely to happen, namely a deterioration in the Claimant’s mental health when
having to deal with matters relating to his employment and grievances. There
was, he points out, no request here for an adjournment for a limited time;
rather, the prognosis was open‑ended and indicated that the Claimant
would never recover sufficiently to enable him to attend. This case was one of
those hypothetical, difficult cases referred to in paragraph 44 of the judgment
in O’Cathail. The Tribunal were not therefore required to take
the steps suggested in Teinaz and were entitled, having regard to
the overriding objective and the balance of prejudice, to refuse to postpone
this hearing. This was, says Mr Calvert, a fair decision in all the
circumstances and one with which the EAT should not interfere.
43.
We have considered Mr Calvert’s submissions carefully, recognising
the practical difficulties faced by busy Tribunals in such circumstances, and
the inconvenience caused to parties, witnesses and indeed other litigants
waiting to be heard, by such postponements occurring so late in the day.
However, in our view, the evidence in this case does not support Mr Calvert’s
submission that this Claimant would never be fit to attend a hearing, or the
Tribunal’s conclusions in this respect. At paragraph 44 of the judgment
in O’Cathail the EAT said this:
“There are cases where medical evidence indicates that a party
to tribunal proceedings, or an important witness, may never be fit to
participate – or participate to a significant extent – in a hearing. Such
cases present great difficulty for tribunals; they may require considerable
adjustments to be made if proceedings are to be disposed of in a way which is
fair to both sides and which avoids undue delay. This, however, was not
such a case. The medical evidence indicated that the Claimant was
suffering from a respiratory infection serious enough to require antibiotics
but likely to be limited in duration.”
44.
While this Claimant’s condition was clearly related to his disability,
the evidence as a whole did not in our view permit a finding that this Claimant
would never be fit to participate in the hearing, or even that this was likely
to be the case. On the available evidence, this Claimant had engaged
throughout with this litigation, maintaining contact with the Tribunal,
attending all the case management discussions, complying in general terms with
the Tribunal’s orders, supplying Further Particulars, disclosing documents, and
serving his detailed witness statement. The previous postponement had been
granted at the Respondents’ request, which was opposed by the Claimant. While
it is suggested that the Claimant was responsible for that request for a
postponement, the Tribunal acknowledged that the Claimant’s medical condition
was relevant to that issue, and that he could not be criticised for his conduct
of the proceedings.
45.
The medical evidence in this case indicated, in our view, that there was
a need for reasonable adjustments to be made to accommodate this Claimant’s
difficulties. It is correct that Dr Wastling did not identify a time when
the Claimant would be fit to attend a hearing, but the plain fact is that he
was not asked to. The Claimant, as a self‑represented litigant,
considered that he was complying with the requirement to provide medical
evidence as to his illness and his unfitness to attend. No request was ever
made of this Claimant to obtain and provide evidence dealing with this specific
issue. It was not legitimate, in our judgment, to assume, without further
enquiry, that this Claimant might never be able to attend, and that there was
no reasonable prospect of the hearing taking place in the foreseeable future.
46.
The Tribunal appear to have concluded that, since the Claimant had not
indicated when he would be able to attend, his application should be decided as
if the medical evidence indicated that he never could. Their inability to make
a reasonable assessment of when the Claimant may be fit to attend was capable
of being easily remedied by an enquiry for further assistance from
Dr Wastling, who was plainly aware of the position, supportive of the
Claimant’s application and available to provide promptly further assistance in
this respect.
47.
Reliance on Dr Singh’s report, to which the Tribunal referred at
paragraph 32, was, in our view, misplaced. Dr Singh’s report was
prepared some 15 months earlier, and he had addressed his mind to the question
of whether or not the Claimant had a disability within the meaning of the
legislation. He had not provided any supplemental report dealing with the events
in May, their effects upon the Claimant and his current condition and
prognosis. This is important, in our view, because while it is correct that
the Claimant’s underlying condition was ongoing, the available evidence from
Dr Wastling was that specific events in around mid‑May had caused an
exacerbation of his condition. What was missing was medical opinion as to how
long that exacerbation was likely to last. Reliance on the passage in
Dr Singh’s report that we have set out at paragraph 5 above, at least
without further enquiry, was, in our view, inappropriate. The Claimant’s
prospects of recovery and of ‘closure’ were unlikely to be increased if the
matters that lay at the heart of his claims were addressed by being determined in
his absence at a hearing which he was too ill to attend.
48.
Further, while the Tribunal concluded on 5 July that the Claimant
had ‘still’ not provided any medical evidence of when he might be fit to
attend, the Claimant had not been asked to provide such evidence, either in the
letter sent to him on 4 July or indeed at any stage. Nor had the
Respondents been afforded the opportunity they had referred to themselves,
namely the chance to clarify or explore Dr Wastling’s opinion. In our
judgment, the Tribunal erred in seeking to distinguish the present case from
those of Teinaz and Andreou, and in concluding that,
without an indication of when the Claimant would be fit, they could not find
that a fair hearing at which the Claimant was present would be possible.
49.
Unfortunately, this reasoning was not communicated to the Claimant until
after all his claims had been dismissed. This Claimant was not at any stage
put on notice that Dr Wastling’s letter would be regarded as having little
weight, or indeed as having no weight unless the opinion he gave was further
amplified.
Conclusion
50.
For all these reasons, we have concluded that the Tribunal’s decision to
refuse this Claimant’s applications to postpone the hearing was plainly wrong
and that the Claimant was denied a fair hearing. We would add that this would also
be our decision, applying the reasoning in Teinaz and Andreou.
In the particular circumstances of this case the Tribunal erred in not seeking
further information as to when this Claimant might be able to attend, in
refusing to postpone the hearing and in proceeding with the hearing in the
Claimant’s absence. Their decision amounted to an unreasonable exercise of
their discretion and to a denial of justice for the Claimant.
51.
We therefore allow this appeal and will remit the matter for
determination by a freshly constituted Tribunal. We add these observations,
which we hope will be of some assistance. It will of course be a matter for
the Regional Employment Judge to determine the way forward, but appropriate
case management directions would seem to us to include the provision of full
medical evidence addressing the Claimant’s current condition and prognosis, his
ability to attend and conduct a five‑day hearing, and any reasonable
adjustments that might be necessary to accommodate the Claimant at such a
hearing and to ensure that there can be a fair hearing for all parties in this
case.
