Procedure – Hearing – Postponement

O'Cathail v Transport for London: Court of Appeal, Civil Division: 29 January 2013

In December 2010, the employee was dismissed by the employer company. He subsequently presented a number of claims before the employment tribunal. It was his second complaint which was the subject of the instant proceedings. The hearing was originally fixed for 4 October 2010. In late September, the employee made unsuccessful applications for an adjournment.

An adjournment on the ground of medical unfitness was ultimately granted on 4 October and the hearing was later re-fixed for 21 to 28 February 2011. On 21 February, the tribunal received an application from the claimant for an adjournment. That application was refused on the same day with full reasons. He made further applications on 22 and 23 February, which were also refused on the basis that the reasons in the decision of 21 February still held. The grounds of the application were that the claimant was unfit to attend. He produced a letter from his GP stating that he was suffering from a respiratory infection, which was being treated with antibiotics and that he was unfit to attend the tribunal.

The tribunal decided that it was 'a very rare case' in which it was more unfair in general not to proceed than it would be to adjourn. The employee appealed to the Employment Appeal Tribunal (EAT). The EAT considered, inter alia, the case of Terluk v Berezovsky [2010] All ER (D) 270 (Nov) (Terluk). The EAT accepted that it would not intervene unless it was demonstrated that the tribunal had erred in law in granting or refusing an adjournment, but concluded that it would intervene if the decision imperilled the fairness of the proceedings as a whole. It concluded that the tribunal's decisions on 21 and 23 February had been plainly wrong. The EAT set aside the substantive decision of 17 March and remitted the case to the tribunal. The employer appealed.

The principal issue was whether there was an error of law in the decision of the tribunal in refusing the applications for adjournment, so that the hearing took place and the case was decided in the employee's absence. Consideration was given to article 6 of the European Convention on Human Rights. The appeal would be allowed.

The tribunal had exceptionally wide powers of managing cases brought by and against parties who were often without legal representation. The tribunal's decision could only be questioned for error of law. A question of law only arose in relation to their exercise when there was an error of law principle in the approach or perversity of the outcome. That was the approach which the EAT should continue to adopt rather than the approach in Terluk. Further, article 6 of the convention did not compel the tribunal to the conclusion that it was 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 were two sides to a trial, which should be as fair as possible to both sides. The tribunal had 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 tribunal (see [44], [47] of the judgment).

In the circumstances, there had been no error of law in the decisions of the tribunal to refuse adjournments either in its approach in principle to the exercise of the tribunal's discretion or in the lawfulness of the outcome. It was clear that the most anxious consideration had been given to taking the exceptional step of refusing an adjournment applied for on unchallenged medical grounds. The tribunal had correctly taken the overarching fairness factor into account in assessing the effect of its decision on both sides. Further, there had been no error of law in failing to take the approach laid down in Terluk.

That case was distinguishable on the ground that it was not a decision on the wide management powers of the tribunal or on the more limited appellate jurisdiction of the EAT, as compared with appeals under the CPR. The EAT's application of the Terluk approach had led it into substituting its own decision on the exercise of the discretion for that of the tribunal. That had been an error of law (see [40], [42], [43], [46], [48]-[50] of the judgment). Terluk v Berezovsky [2010] All ER (D) 270 (Nov) distinguished; Pye v Queen Mary University of London [2012] All ER (D) 197 (Feb) considered. Decision of Judge David Richardson [2012] All ER (D) 66 (Mar) reversed.

The employee appeared in person; Peter Edwards and Lucinda Harris (instructed by Eversheds LLP) for the employer.