De-Smith v AWE Plc & Ors (Practice and Procedure) [2017] UKEAT 0292_16

THE HONOURABLE MRS JUSTICE SLADE DBE

1. Mr De-Smith (“the Claimant”) appeals from the refusal of the Employment Tribunal, Employment Judge Vowles and members (“the ET”) by a Judgment sent to the parties on 30 December 2015, to adjourn the Full Hearing of his claims of disability discrimination, the disability being anxiety and depression, victimisation, and unfair dismissal.

2. The Claimant commenced employment with the Respondent on 14 August 2006. At the time of the events which are the subject of the claims before the ET, he was an Environment, Health, Safety and Quality Manager. By an ET1 presented on 21 August 2014, Claim Number 2700836/2014, he brought claims of disability discrimination, failure to make reasonable adjustments and victimisation, against his employers and eight individuals. The Claimant was dismissed by reason of capability and conduct on 23 November 2014. On 17 April 2015 he brought a complaint of unfair dismissal, Claim Number 3300868/2015.

3. On 11 June 2015 Employment Judge Gumbiti-Zimuto held a Preliminary Hearing. The Employment Judge identified the issues and the questions to be addressed by the parties on each of the issues. The Employment Judge made Orders for disclosure of documents. He ordered that oral evidence in chief be given by reference to typed witness statements from parties and witnesses. The Employment Judge ordered that witness statements be exchanged so as to arrive on or before 1 November 2015. The Full Hearing was fixed for ten days starting on 1 December 2015.

4. The Claimant attended the first day of the hearing on 1 December 2015 representing himself. He was accompanied by his witness Mr Godfrey White. The Claimant made an application for a specific disclosure order. A second application was made for a postponement of the hearing pending compliance with such a disclosure order. Both applications were dismissed. In breach of directions of Employment Judge Gumbiti-Zimuto, the Claimant had not produced his witness statement nor that of his witness, Mr White. At the hearing on 1 December 2015 the Claimant was granted the opportunity to produce witness statements no later than 6pm that day, giving him six hours. The Respondent was given until 2pm on 2 December 2015 to respond to the witness statements.

5. The ET informed the parties that if the Claimant did not produce any witness statements as directed:

“22. … the Tribunal will take his previous written statements as his evidence-in-chief. That is pages 11 and 36 which are the statements set out in his claim forms, pages 208 to 210, which was his disciplinary hearing statement; and page 306, his appeal letter. For Mr White, pages 206 to 207 will be taken as his evidence-in-chief.”

6. The Claimant complied with the direction of the ET and presented witness statements for himself and for Mr White to the Respondents by the specified time of 6pm on 1 December 2015.

7. The Claimant did not attend the reconvened hearing on 2 December 2015. The ET recorded at paragraph 26:

“26. So far as non-attendance today was concerned, the Claimant sent an email to the Tribunal stating that he had been signed off sick by his doctor and prescribed sedatives. He enclosed a doctor’s statement of fitness for work which stated: “Severe anxiety and depression - not fit to attend court”. He also sent a further email requesting that the hearing was adjourned due to his illness.”

The Judgment of the ET

8. The ET set out in paragraphs 27 to 42 their grounds for deciding the application made by the Claimant on 2 December 2015 for an adjournment on grounds of ill health.

9. The Claimant had a history of requesting postponements immediately before or at the start of Tribunal proceedings. An application of 20 November 2015 for postponement of the hearing due to start on 1 December 2015 on grounds that the Respondent had not disclosed documents had been rejected.

10. In a previous claim for race discrimination against the First Respondent, 2702391/2013, the Claimant applied for a postponement on the morning of the three-day Full Hearing, 28 April 2014. The application was made on the grounds of the Claimant’s ill health. The case was adjourned to be heard in October 2014. At paragraph 6 of the Judgment of the ET, Employment Judge Lewis and members, the Claimant was informed:

“We wish to make clear that if that happens, the matters described above as contributing to our decision to adjourn will not necessarily be material in October, because by then the Claimant will have had ample time to prepare, and/or arrange for representation. Even if the Claimant continues to be unwell at the adjourned dates, he cannot assume that that will be accepted as grounds for adjournment, as the Tribunal will have to decide whether it is in the interests of justice to proceed or not. The parties should proceed on the basis that the hearing dates set for October are to be final.”

11. On 8 October 2014 an application by the Claimant for a postponement of the Full Hearing was refused by Employment Judge Lewis. The grounds for the application included a delay in obtaining a medical report confirming his lack of fitness to attend a disciplinary hearing and, by necessary implication, a hearing before the Employment Tribunal. The Claimant represented himself at the Full Hearing in October 2014 before Employment Judge Hill and members. His claim of race discrimination was dismissed.

12. The ET noted that in accordance with their directions the Claimant had produced a seven page typed witness statement on the afternoon of 1 December 2015.

13. The ET took into account that all Respondents together with their counsel and solicitor were present at the hearing. The Respondents included the eight individuals. One had retired, two worked in Scotland and had arranged overnight accommodation in Reading for ten days. One Respondent was due to leave the employment of the First Respondent in March 2016.

14. The ET considered whether it was possible to have a fair hearing in the absence of the Claimant. They stated that they:

“35. … took account of the Court of Appeal decision in O’Cathail v Transport for London [[2013] ICR 614] in which the Court said that Tribunals must, in such circumstances, balance the adverse consequences of proceeding with the hearing in the absence of one party against the right of another party to have a trial within a reasonable time and the public interest in the prompt and efficient adjudication of cases.”

15. The ET noted at paragraph 37 the material which the Claimant had produced and which would be considered at the hearing. This was:

“37. The Tribunal also had before it the Claimant’s 7 page witness statement, statements in his two ET1 claim forms, his statement in his disciplinary hearing statement and his appeal statement. It also had a witness statement from Mr White on his behalf and Mr White’s statement made in July 2014 in respect of the disciplinary sought.”

16. The ET took into account the fact that at a Preliminary Hearing on 11 June 2015 which the Claimant attended, the claims and issues to be determined at the Full Hearing were set out in considerable detail. The Judgment and Order of Employment Judge Gumbiti-Zimuto on the Preliminary Hearing was sent to the parties on 18 June 2015. Issues under each head of claim were set out clearly. The issues in the disability discrimination claim included:

“5.1. The Respondent accepts that the Claimant had a mental impairment, namely depression. The Respondent does not accept that the said impairment amounts to a disability within the meaning of section 6 of the Equality Act 2010.

5.2. Does the impairment have a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities?

5.3. If so, is that effect long term? In particular, when did it start and:

5.3.1. has the impairment lasted for at least 12 months?

5.3.2. is or was the impairment likely to last at least 12 months or the rest of the Claimant’s life, if less than 12 months?”

The ET observed that the claims and issues to be considered go back to January 2013.

17. As for the ill health which was the basis of the application on 2 December 2015 for a postponement of the hearing the ET observed at paragraph 40:

“40. Although the Claimant’s GP certificate stated that he would be unfit to attend the hearing during the course of the next 2 weeks, there was no prognosis and no indication as to when he may be fit to attend a hearing.”

18. The ET checked for the next available dates for listing of a ten day hearing. They were told that a ten day hearing could not be re-listed before May 2016 and even that was not guaranteed. The ET observed that “There are of course other cases in the Tribunal list which are competing for hearing dates”.

19. The ET set out their conclusion on the Claimant’s application of 2 December 2015 to postpone that hearing:

“42. In view of the above, and taking account of the overriding objective to deal with cases fairly and justly, and being mindful that fairness applies to all parties, the Tribunal concluded that the balance of fairness and justice weighed in favour of hearing the case in the absence of the Claimant. The Claimant’s evidence, and that of his witness, Mr White, as described above, would be taken into account and thereby all parties would receive a fair trial within a reasonable time.”

The Amended Grounds of Appeal

20. Following the rejection of the original Notice of Appeal as disclosing no grounds for pursuing an appeal, on a hearing to determine the Claimant’s application under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 (“EAT Rules”), Mr Justice Supperstone allowed the application and ordered the appeal to proceed to a Full Hearing on amended grounds of appeal. The amended grounds of appeal stand in substitution for the original Notice of Appeal. The amended grounds will be referred to as the grounds of appeal. The overarching contention is that the ET erred in law in its approach to the question of whether the Claimant should be granted an adjournment. It is the amended grounds of appeal and no others which are to be considered by the Employment Appeal Tribunal (“EAT”) at this Full Hearing.

21. A Respondents’ Answer was served on behalf of all Respondents. The Respondents resist the appeal on the grounds relied upon by the ET and additional grounds.

22. The additional grounds include that on 11 June 2015 the ET made an Order that statements be exchanged on Sunday 1 November 2015. The Respondents sent all their statements to the Claimant on the next business day, 2 November 2015 under password protection until the Claimant complied with the Order. The Claimant did not provide his statements before the commencement of the hearing on 1 December 2015. Various reasons were given for this. On 16 November 2015 the Respondents sent the Claimants the password for the statements.

23. In their Answer the Respondents also contend that if, contrary to their submissions, the ET erred in the exercise of their wide discretion whether to adjourn the hearing, that error made no difference as the ET went on to hear the case which was entirely devoid of merit. A remission to the Employment Tribunal would therefore be futile.

Ground 1(a)

24. The Claimant contended that the ET erred by:

“apparently concluding that because the Claimant’s GP did not give a date as to when the Claimant would be fit to attend the hearing, he would be unlikely to be fit to attend in future.”

25. The basis of the contention in ground 1(a) is that in paragraph 40 the ET observed that the GP’s certificate gave no prognosis or indication as to when the Claimant may be fit to attend a hearing. The Claimant made the point, as was suggested by Lord Justice Peter Gibson in Teinaz v Wandsworth London Borough Council [2002] ICR 1471 at page 1479 paragraph 22, that the ET could, and he submits, should have directed him to obtain further evidence from the doctor as to when he would have been fit to attend a hearing. Such information could have been provided. The Claimant also relied upon the judgment of the EAT in Beardshall v Rotherham Metropolitan Borough Council and Others UKEAT/0073/12/ZT in which Mrs Justice Cox sitting in the Employment Appeal Tribunal with members held at paragraph 44 that the evidence as a whole did not permit a finding in that case that the Claimant would never be fit to participate in the hearing, or even that this was likely to be the case. The Claimant submitted that the ET erred in not following Teinaz and Beardshall by not inviting or making enquiries of his GP as to when he would be fit to attend a hearing before them.

26. The simple answer to ground 1(a) given by Mr Glyn QC on behalf of the Respondents is that paragraph 40 of the Judgment cannot be construed as the ET proceeding on the basis that the Claimant would be unfit to attend a hearing in the future.

Discussion and Conclusion

27. Ground 1(a) depends upon the assertion that the ET decided the application for an adjournment on the basis that the Claimant would be unlikely to attend a Full Hearing of his claims in the future. The only paragraph in which the ET refers to the Claimant’s fitness to attend a hearing in the future is paragraph 40. In that paragraph they simply observe that the GP’s certificate gave no prognosis and no indication as to when the Claimant may be fit to attend a hearing at a future date.

28. If the ET had proceeded on the basis that the Claimant would be unlikely to be fit to attend a hearing in the future it is highly unlikely that the ET would have asked the listing office at Watford for dates for an adjourned ten day hearing. The basis of the decision of the ET to refuse the application for an adjournment on grounds of ill health in this case is materially distinguishable from that in Beardshall. The ET in Beardshall decided to refuse the Claimant’s application for an adjournment on grounds of ill health taking into account other considerations on the following basis recorded in paragraph 22 of the Judgment of the EAT:

“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.”

It is apparent that the ET in that case reached their decision to refuse an adjournment on the basis that because Mr Beardshall was ill they could see no reasonable prospect of a hearing taking place in the future. That is not so in this case. The ET proceeded on the basis that it was likely that the Claimant would be fit to attend a hearing in the future.

29. The basis upon which the ET decided the application to adjourn this case was also materially distinguishable from that in Teinaz. In Teinaz the ET found the medical evidence in support of the application inadequate. Lord Justice Peter Gibson at paragraph 11 set out paragraph 25 of the judgment of the ET:

“Balancing all the relevant factors we have reached the clear view that the discretion to postpone which [Dr Teinaz] invokes should not be exercised. At the heart of this conclusion is our opinion that the medical ground on which the application is based rests on evidence which is utterly inadequate.”

It was on the basis of this finding that Lord Justice Peter Gibson held at paragraph 22:

“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. … I do not say that a tribunal or court necessarily makes an error of law in not taking such steps. …”

30. There was no suggestion in this case that the ET had doubts as to whether the GP’s certificate of 2 December was genuine. Nor is there any indication from the Judgment that the ET considered the absence of an opinion when the Claimant would be fit to attend a hearing to be material to their decision. Further, even if it had been materially relied upon, as Lord Justice Peter Gibson observed in Teinaz, it is not necessarily an error of law for an ET not to have further enquiries made of the doctor. Each case must depend on its own facts.

31. In my judgment the ET did not err in law as asserted in ground 1(a).

Ground 1(b)

32. In ground 1(b) the Claimant asserts:

“failing to make further inquiry of the GP if it had concerns or questions, whether through the Claimant, his witness Mr White (who attended the hearing on 2 December 2015), or directly of the GP, as to firstly, when the Claimant would be fit to attend and/or secondly, his reasons for becoming ill (as urged in Teinaz v Wandsworth LBC [2002] ICR 1471). Had such inquiry been made, it is likely that the Claimant would have indicated that he was likely to be fit by May 2016 (the first date the matter could be relisted) and that one of the main contributing factors to his stress and anxiety had been having to urgently produce his witness statement in a matter of hours at the tribunal’s direction, which he had done.”

33. Submissions relied upon by the Claimant in support of ground 1(a) were also relied upon by him in support of ground 1(b). He further asserted that the actions of the ET in shortening the length of the hearing from ten days first to nine and then to seven had a bad effect on his state of mind. His condition started to deteriorate. He asserted that not having access to the Occupational Health and doctor’s reports hampered his preparation. He contended that one of the main factors causing his lack of fitness to attend the ET on 2 December 2015 was the requirement placed on him by the ET to produce his witness statement in a matter of hours. Accordingly it was submitted by the Claimant that if enquiry had been made of his GP as to when he would be fit to attend a hearing it was likely that the answer would have been that he was likely to be fit by May 2016.

34. Mr Glyn QC relied upon the arguments in opposition to ground 1(a) and also pointed out that the ET in Teinaz had proceeded on the basis that the medical evidence in support of the application for an adjournment was suspect. It was in those circumstances, which do not apply in this case, that the observations about obtaining further medical evidence were made.

35. Counsel for the Respondents observed that if the requirement on the Claimant to produce his statement within six hours on 1 December 2015 had caused him stress he had only himself to blame. Employment Judge Gumbiti-Zimuto made clear by his directions and Orders following a Preliminary Hearing on 11 June 2015 what was required of the parties. The questions relevant to material issues were identified. The parties were ordered to exchange witness statements on or before 1 November 2015. On 2 November the Respondents provided their witness statements under password protection pending receipt of the Claimant’s statements. Despite the Claimant not providing his statements, the password for the Respondents’ statements was provided to the Claimant on 16 November 2015. The Claimant knew what was required of him, had ample time to prepare his statement, yet appeared at the start of the ten day hearing of his claim not having done so.

36. Mr Glyn QC contended that if his illness was a cause of the Claimant’s inability to participate in the hearing of his claim from 2 December 2015 this was a case in which, as in O’Cathail v Transport for London [2013] ICR 614, the exceptional step of refusing an adjournment applied for on unchallenged medical grounds was warranted.

Discussion and Conclusion

37. For the reasons given in dismissing ground 1(a) in my judgment the ET did not err in law in failing to make further enquiry of the GP as to when the Claimant would be fit to attend a hearing.

38. Further it was not an error of law for the ET to fail to make further enquiry of the GP of the reasons for becoming ill. The ET accepted that the Claimant was ill on 2 December 2015 and the GP certified him as unwell for two weeks. The reason for his becoming unwell was not relevant to the decision whether to adjourn the hearing. The ET proceeded on the basis of the doctor’s certificate that the Claimant would be too unwell to attend on the days set aside for the hearing in December and made enquiries of listing for future dates. The fact of, rather than the cause of, the illness was relevant to the actions and decisions of the ET.

39. The ET did not err in law as alleged in ground 1(b).

Ground 1(c)

40. By ground 1(c) the Claimant asserts:

“taking relisting difficulties into account when, given the relatively short postponement this would have entailed in the context of a lengthy and complex case (5 months until May 2016), this should not have been a relevant consideration.”

41. The Claimant contended that unlike the claim in O’Cathail his claim was not “old and stale”. His appeal from dismissal had only been dismissed in February 2015. A postponement of the hearing of his claims from December 2015 to May 2016 was relatively short. The Claimant contended that a delay of this length in a complex case should not have been relied upon by the ET as a factor in refusing his application for an adjournment.

42. Mr Glyn QC referred to the first ET1 under consideration, Case Number 2700836/2014. In that claim of disability discrimination and victimisation for bringing a race discrimination claim the Claimant relied on events going back to the end of 2013. Whilst by May 2016 those claims would not be as stale as those in O’Cathail they were old. Counsel also drew attention to the observation of the ET that they had been informed that even a May 2016 listing could not be guaranteed. The delay caused by an adjournment was one of the factors taken into account by the ET in refusing an adjournment. A delay of more than five months was a relevant factor in deciding whether to grant an adjournment. Mr Glyn QC submitted that the ET did not err in law in taking the delay which it would cause in deciding not to grant an adjournment.

Discussion and Conclusion

43. The ET rightly referred in paragraph 42 to the objective of the parties receiving a fair trial within a reasonable time. Avoiding delay so far as is compatible with proper consideration of the issues is one of the components, Rule 2(d), of the overriding objective of dealing with cases fairly and justly which is specified in Rule 2 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013.

44. Both parties relied upon the judgment of the Court of Appeal in O’Cathail in either challenging or supporting the reliance by the ET on the delay of five months which would have been brought about by an adjournment. The Claimant sought to distinguish his case, in which the appeal from his dismissal had only been dismissed in February 2015 and in which, if the application for an adjournment had been granted, his claims would have been heard in May 2016, from O’Cathail, in which the claim was in relation to events dating back to 2008 and the adjournment refused in February 2011.

45. Whilst not as “old and stale” as the claims in O’Cathail, the ET commented in paragraph 38 that the events described and relied upon by the Claimant go back to January 2013. The Claimant relied upon the relatively recent dismissal of his appeal from dismissal to contend that a delay of five months if the adjournment had been granted, would not have rendered his claim “stale”. This argument fails to take into account the claims in Case Number 2700836/2014 presented on 21 November 2014 in which the Claimant relied upon events going back to 2013. I agree with counsel for the Respondents that whilst the claims may not have been as stale as those in O’Cathail they were old even by December 2015. Unlike the later unfair dismissal claim which could and was only brought against his employer, the earlier 2014 discrimination and victimisation claims were also brought against eight individuals. They would have had these claims hanging over them for nearly two years if the postponement had been granted. As it was, a hearing in December 2015 meant that they had been subject to the claims for almost 16 months.

46. In my judgment it was not, as is asserted in ground 1(c), impermissible for the ET to take into account as a relevant consideration in deciding whether to grant a postponement the delay of five months which it would cause. Nor, as is asserted, was the ET required to take into account the length or complexity of the case in assessing the weight to be attached to such delay. The parties had been on notice since the directions given following the Preliminary Hearing in March 2011 as to if what was required of them by way of preparation for the Full Hearing. The application on 2 December 2015 for a postponement was made on grounds of ill health not lack of preparedness. The ET did not err if and insofar as they failed to judge the delay of five months in the light of the length or complexity of the hearing. These considerations were not relevant to the reason for the Claimant’s application for a postponement made on 2 December 2015.

47. Ground 1(c) of the appeal does not succeed.

Ground 1(d)

48. By ground 1(d) the Claimant asserts:

“failing to have regard to the fact that the Claimant had properly engaged with the process, including preparing his witness statement in compliance with the tribunal’s order with several hours’ notice (it was 2 pm when he returned home from the hearing, order was for statement to be produced by 6 pm that day.”

49. The Claimant relied upon the fact that he had demonstrated that he had engaged with the process of pursuing his claim before the ET. It was submitted that the ET erred in that they failed to take into account the effort he had made in complying with their Order to provide witness statements within six hours on 1 December 2015.

50. Mr Glyn QC contended that ground 1(d) is a non-point as paragraph 34 of their Judgment shows that the ET did take into account the Claimant’s compliance with the Order made on 1 December 2015 to produce and serve witness statements within six hours. This requirement had only been made necessary by the failure of the Claimant to comply with the Order to serve such statements by 1 November 2015.

Discussion and Conclusion

51. In my judgment it cannot properly be asserted that overall the Claimant had properly engaged with the process. On 11 June 2015 Employment Judge Gumbiti-Zimuto ordered that evidence-in-chief be given by reference to typed witness statements from parties and witnesses. It was further ordered that witness statements be exchanged so as to arrive on or before 1 November 2015. The Claimant failed to comply with this Order. Complaints that he could not do so until further specific disclosure had been given by the Respondents were not upheld.

52. It cannot be said that the Claimant fully engaged with the proceedings before the Employment Tribunal when he failed to take the important step of producing and serving his own statement and that of his witness by the date ordered, 1 November 2015, or indeed by the commencement of proceedings on 1 December 2015.

53. Nor can it be said that the ET failed to take into account the Claimant producing his and his witness’ statements by the end of the day on 1 December 2015 by the deadline he had been given earlier that day. The ET held at paragraph 34:

“34. The Tribunal noted that in accordance with its directions, the Claimant had produced a 7 page typed witness statement on the afternoon of 1 December 2015.”

The compliance on the first day of the Full Hearing with the requirement that the Claimant produce witness statements effectively within six hours of the Order of 1 December 2015 must be viewed against the background of his failure to do so before the start of the hearing of his claims.

54. As the ET set out in their Judgment, the Claimant had known at least since the date of the Order made in the Preliminary Hearing of 11 June 2015 what the issues to be decided were and that he had to produce a witness statement for himself and his witness on those matters but had failed to do so. An application by the Claimant for specific disclosure made on 20 November 2015 was refused. There was no appeal against that refusal. A renewed application by the Claimant for specific disclosure was refused on 1 December 2015 with full reasons given.

55. There was no excuse for failure by the Claimant to comply with the original Order to produce witness statements by 1 November for the Full Hearing of his claims on 1 December 2015. That the Claimant finally engaged speedily with the litigation process was commendable. However the need for speed was brought about by the Claimant’s serious failure in not providing witness statements in reasonable time before the hearing in compliance with the previous Order. The Employment Tribunal, having referred to the compliance in paragraph 34 of their Judgment, cannot be said to have failed to have regard to it. The weight to be attached to such compliance was judged along with the other matters taken into account by the Tribunal in exercise of their discretion whether to adjourn. In the context of the history of earlier failure by the Claimant to provide witness statements it would be unsurprising if little weight were given to this thirteenth hour compliance.

56. Ground 1(d) does not succeed.

Final Ground of Appeal

57. In a sweep up ground of appeal the Claimant contends:

“Taking into account all of the above factors, including the requirement to ensure that there was not a denial of justice or that the parties’ right to a fair trial was not infringed (Beardshall v Rotherham Metropolitan Borough Council (2012) UKEAT/0073/12/ZT: Teinaz: TFL v O’Cathail [2013] EWCA Civ 21, [2013] ICR 614) the employment tribunal unreasonably exercised its discretion in refusing the Claimant an adjournment without making any further inquiries.”

58. The Claimant relied upon the arguments advanced in support of the earlier grounds of appeal. He referred to the judgment of the EAT in Beardshall in which it was held that the Employment Tribunal had erred in failing to seek further medical evidence as to when the Claimant in that case would be able to attend a hearing. The Claimant also relied upon Teinaz in which Lord Justice Peter Gibson held that a litigant who is unable to be present at the hearing of his case through no fault of his own will usually have to be granted an adjournment.

59. The Claimant also complained of the reduction in the number of days available for the hearing in December 2015 and that an adjournment to May 2016 would not have been a significant delay in the context of the complexity of his claim.

60. The Claimant contended that it was not consistent with the overriding objective to refuse his application for an adjournment.

61. Mr Glyn QC referred to the judgment of Lord Justice Mummery in O’Cathail in which the Judge emphasised the limited basis upon which the Employment Appeal Tribunal can interfere with the exercise of discretion by an Employment Tribunal on case management issues. The EAT can only interfere if the Employment Tribunal has erred in principle or produced a perverse outcome. Mr Glyn QC contended that neither were present in this case.

62. Mr Glynn QC referred to the fact that the Employment Tribunal in O’Cathail refused the adjournment which had been requested on unchallenged medical grounds. The Court of Appeal emphasised in paragraph 45 that overall fairness is always the overriding objective. At paragraph 42 the Court of Appeal held that the Tribunal correctly took into account the overriding fairness factor in assessing the effect of its decision on both sides.

63. Mr Glyn QC contended that the ET took into account all relevant factors in exercising their discretion whether to grant an adjournment. They set out those factors and took their decision in accordance with the overriding objective of dealing with cases justly and fairly. The Employment Tribunal did not err in principle or reach a perverse conclusion.

Discussion and Conclusion

64. The correct approach of the appellate Courts to appeals from case management decisions made by Employment Tribunals of which a decision to adjourn or postpone a hearing is one was explained by Lord Justice Mummery in O’Cathail. The Court of Appeal contrasted the approach of appellate Courts in considering appeals under the CPR as exemplified in Terluk v Berezovsky [2010] EWCA Civ 1345 with appeals from case management Orders of Employment Tribunals. Lord Justice Mummery explained:

“44. … In relation to case management the employment tribunal has exceptionally wide powers of managing cases brought by and against parties who are often without the benefit of legal representation. The tribunal’s decisions can only be questioned for error of law. A question of law only arises in relation to their exercise, when there is an error of legal principle in the approach or perversity in the outcome. …

45. Overall fairness to both parties is always the overriding objective. The assessment of fairness must be made in the round. It is not necessarily pre-determined by the situation of one of the parties, such as the potentially absent claimant who is denied an adjournment.

46. … The employment tribunal did not err in law by reaching a decision that the appeal tribunal would not have made, had it been considering the application to adjourn. What is fair in the interests of the parties is, in the first instance, a matter for assessment by the employment tribunal. The Employment Appeal Tribunal ought only to intervene if the employment tribunal has erred in principle or produced a perverse outcome in the sense that no reasonable tribunal could have concluded that it was fair in all the circumstances to refuse the adjournment.

47. Finally, article 6 of the Convention does not compel the tribunal to the conclusion that it is always unfair to refuse an application for an adjournment on medical grounds, if it would mean that the hearing would take place in the party’s absence. There are two sides to a trial, which should be as fair as possible to both sides. The tribunal has to balance the adverse consequences of proceeding with the hearing in the absence of one party against the right of the other party to have a trial within reasonable time and the public interest in prompt and efficient adjudication of cases in the employment tribunal.”

65. This appeal is from the case management decision of the ET not to postpone the hearing of the Claimant’s claims. The Claimant had attended on the first day listed for the hearing. In circumstances set out in the Judgment of the ET and following the Claimant putting in the effort of producing his witness statement and that of his witness on that first day, 1 December, on 2 December he did not attend the Tribunal. The Claimant sent an email saying that he was signed off sick. According to the attached doctor’s statement he was suffering from severe anxiety and depression and was not fit to attend court.

66. In fifteen numbered paragraphs the ET set out the matters they took into account and their reasons in deciding on the exercise of their discretion whether or not to adjourn the proceedings.

67. The challenges made by the Claimant to the approach of the ET by taking into account, by omitting to take into account or failure to take certain action have failed. The ET did not err in principle or law or reach perverse conclusions in respect of those challenges.

68. The ET carefully considered all relevant matters when reaching their decision. They considered whether it was possible to have a fair hearing in the absence of the Claimant. The ET correctly considered relevant matters in the round and balanced “the adverse consequences of proceeding with the hearing in the absence of one party against the right of another party to have a trial within a reasonable time and the public interest in the prompt and efficient adjudication of cases”. Unlike the Employment Tribunal in Beardshall, as shown in paragraph 22 of the judgment in quoting paragraph 34 of the decision below, this ET did not proceed on the basis that because of the illness of the Claimant they could see no reasonable prospect of the hearing taking place in the foreseeable future. They proceeded on the basis that the hearing could have taken place in May 2016. They reached their decision on other grounds. Nor, unlike the decision in Teinaz, did they have doubts about the medical evidence placed before them.

69. Each application to an Employment Tribunal for postponement of a hearing before them will be decided on its own facts. On the facts before them this ET did not err in law or in principle or reach a perverse conclusion in refusing the application made by the Claimant on 2 December 2015 to postpone the hearing of his claims.

70. Having reached this conclusion it is not necessary to consider the Respondents’ additional ground for upholding the decision of the ET, that to remit the claims to the ET would be futile as they would have failed in any event.

71. The appeal is dismissed.

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> De-Smith v AWE Plc & Ors (Practice and Procedure) [2017] UKEAT 0292_16_3107 (31 July 2017) URL: http://www.bailii.org/uk/cases/UKEAT/2017/0292_16_3107.html Cite as: [2017] UKEAT 0292_16_3107, [2017] UKEAT 292_16_3107

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