Employment tribunal - Procedure - Hearing - Adjournment

O’Cathail v Transport for London: EAT (Judge Richardson, Mr A Harris and Mr J Rivers): 13 January 2012

The employee was employed by the employer in June 2007. From January 2008 until his eventual dismissal in December 2010 he was absent on grounds of ill health.

He brought a number of claims in the employment tribunal (the tribunal) complaining about bullying and harassment. The claim with which the instant hearing was concerned was listed for a hearing commencing on 21 February 2011. On 21 February, the tribunal received an application from the employee for a further adjournment. The employee explained that he was not fit to attend the tribunal and supported the application with documents, including a doctor’s letter, which indicated that he needed to rest for a week. While the tribunal accepted the medical evidence, it hoped that the employee would be fit to attend on 23 February, refused the requested adjournment and decided to commence the hearing on 23 February, adjourning the start of the hearing by two days. On 23 February, the employee applied again for an adjournment.

He informed the tribunal that he had been back to hospital and there was concern that he might have a tropical illness. He supported that application with a statement from his GP to the effect that the employee would be unfit to attend the tribunal for the next two weeks. That application was refused by the tribunal and, following a hearing in the employee’s absence, judgment was given in favour of the employer. The employee appealed to the Employment Appeal Tribunal (EAT).

The principal issue that fell to be determined was whether, given the medical evidence that the employee had provided, the tribunal had erred in refusing his application for an adjournment. Consideration was given to Terluk v Berezovsky [2010] All ER (D) 270 (Nov) and Osborn & Booth v Parole Board [2010] All ER (D) 185 (Dec). The appeal would be allowed.

There were some decisions to grant (or refuse) an adjournment which imperilled the fairness of the proceedings as a whole. The effect of Terluk and Osborn was that where that was a ground of appeal, the EAT had to look for itself to see whether the effect of the decision had been to deny a fair hearing to the employee. The question was whether the decision was a fair solution, not whether it was the fair solution (see [35]-[37] of the judgment).

In the instant case, the tribunal’s decisions of 21 and 23 February had plainly been wrong and had deprived the employee of a fair hearing. On 21 February, the tribunal had had before it evidence from the employee’s GP. It had, without questioning that evidence or seeking further medical evidence, adjourned the hearing for just two days. There had been no basis in the medical evidence for the tribunal’s hope that that adjournment would enable the employee to attend.

On 23 February, the tribunal had had before it further medical evidence stating in plain terms that the employee had been unfit to attend during the period allotted for the hearing. The tribunal had nevertheless proceeded with the hearing (see [40], [41] of the judgment). The tribunal’s judgment would be set aside and the case would be remitted to be considered by a fresh tribunal (see [48] of the judgment).

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