Employment Flash - 16th January 2012
Guiding principles for adjourning, when adjourning is the only thing to do, even on the 1st day of an 8 day hearing that has been adjourned previously...
O'Cathail v Transport for London [2012] UKEAT 0247 11 MAA
O'C sought an adjournment in February 2011 of an 8 day hearing on the first day of the hearing due to his absence by reason of ill health. The claim, which commenced in August 2009, had previously been adjourned in October 2010 on O'C's application for medical reasons supported by medical evidence. O'C explained his present illness in an email to the ET and supported his application with copies of the prescriptions issued to him and the discharge summary from the hospital - "rest for a week"; he also supplied a faxed GP's letter in support. The ET refused the adjournment.
The ET paid regard to Teinaz v LB Wandsworth [2002] IRLR 721.The ET did not challenge the authenticity of O'C's sick note or unwellness, it took the view: (a) the case was stale whereby further delay would be a disadvantage to both parties - 2 of TL's witnesses were already unavailable and a 3rd was due to return to Australia; (b) the witnesses, including O'C, were under enormous stress waiting for the outcome of the hearing - O'Cs 3rd and 4th claims against TL were on hold pending the outcome of this one creating a specific log-jam; (c) the overriding objective includes the saving of expense; (d) must deal proportionately - O'Cs claim did not include the loss of his job and was of a relatively low value - TL had admitted (subject to jurisdiction) one part of the claim; (e) a considerable amount of ET resources had been directed at this claim; (f) dealing expeditiously and fairly includes having regard to other claimants in the system; (g) a number of issues relate to jurisdiction, these lend themselves to being determined in O'Cs absence but it is preferable that O'C attend.
The ET constructed a timetable which it hoped would allow O'C to attend but it was a forlorn hope, O'C restating his application to adjourn, supported by a statement from his GP that he would be unfit for 2 weeks. The ET refused the applications; the hearing went ahead in O'Cs absence and he lost on all points including the jurisdiction point in relation to the aspect TL had admitted. The EAT upheld O'C's appeal.
The main question for the EAT (HHJ Richardson + wingers) was whether given O'Cs medical evidence the ET erred in law in refusing the adjournment. It started with Terluk v Berezovsky [2010] EWCA Civ 1345 (a non-employment case): (a) the approach to whether the decision on an adjournment was correct is not whether it lay within the broad band of judicial discretion but whether it was unfair; (b) what was engaged by the successive applications for an adjournment was the right both at common law and under the ECHR to a fair trial; (c) what the appellate court is concerned with is what was fair in the circumstances identified and evaluated by the judge; (d) there may be more than one genuinely fair solution to a difficulty; (e) it is where the appellate court can say with confidence that the course taken was not fair that it should intervene. This decision was reiterated in Osborn & Booth v Parole Board [2010] EWCA Civ 1409 (also a non-employment case, the issue relating to whether or not to hold an oral hearing; the matter is apparently being appealed).
In Teinaz the court of appeal held that the ET erred in refusing an adjournment where T had been specifically advised by his doctor not to attend the hearing. Teinaz spoke of the discretion to grant an adjournment and the appellate court will be slow to interfere with a case management decision and only then on well known limited grounds; although adjournments are discretionary some must be granted if not to do amounts to a denial of justice: where the consequences of a refusal are severe, such as to lead to a dismissal of proceedings, the court/tribunal must be particularly careful not to cause an injustice to a party seeking an adjournment. A party whose presence is needed for the fair hearing of a case but who cannot attend through no fault of his own will usually have to be granted an adjournment, however inconvenient that may be to the tribunal or other party, Article 6 [not incorporated into UK law at the time] demanded nothing less. The onus is on the applicant to prove the need for an adjournment.
The EAT looked at Andreou v Lord Chancellor's Department [2002] IRLR 721, A applied for an adjournment on inadequate medical evidence, the ET adjourned for a week giving a careful direction as to the medical evidence to be supplied. A supplied medical evidence but it did not comply with the ET's direction. The ET refused a further adjournment, and the Court of Appeal upheld that decision: (a) the tribunal had to balance a number of factors: fairness to A (extremely important particularly in view of the incorporation of Art 6), and fairness to LC; (b) all allegations of racial discrimination are serious, serious for the victim and for those accused; (c) such complaints must be investigated, and disputes determined, promptly; (d) the events here took place a long time ago, well outside the normal 3 month limitation period; (e) the ET took account of there being other litigants who were waiting; (f) fairness to other litigants may require that indulgences given to those who have had the opportuniy to justify an adjournment but have not taken that opportunity adequately are not extended; (g) A had given no indication of when the medical evidence that she required would be available or when it might be that the case could come on for trial.
HHJ Richardson approached matters thus: (a) the law requires a fair hearing to be afforded to parties where their civil rights are determined; (b) this is a minimum requirement flowing from the common law and Art 6; (c) whether an ET has met this fundamental requirement is a matter of law; (d) most decisions on whether to grant or refuse an adjournment will not imperil the fairness of the proceedings as a whole; (e) even a decision at relatively short notice will not necessarily imperil the fairness of the hearing; (f) parties cannot expect adjournments except for pressing reasons; (g) hearings are capable of accommodating many forms of disadvantage, real or perceived, without being unfair; (h) the appeal tribunal will only intervene if it can be demonstrated that the ET erred in law in granting or refusing the adjournment; (i) it must be shown that the ET acted upon wrong legal principles, or left some essential out of account, or relied upon some irrelevance, or reached a decision outside the ambit within which reasonable disagreement is possible; (j) but some decisions to grant or refuse an adjournment do imperil the fairness of the proceedings as a whole; (k) where a decision does imperil the fairness of the proceedings as a whole, 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.
The EAT saw Teinaz and Andreou with their references to discretion as being subject to the fundamental principle. There may be more than one fair solution to a difficulty: the question is, was it a fair solution not whether it is the fair solution. Teinaz and Andreou continue to provide valuable guidance as to what is fair.
In the absence of challenge to O'Cs medical evidence or further enquiry as in Teinaz the ET was bound to act on the received medical evidence, that evidence was to the effect that O'C could not attend the ET. It was not evidence that O'C may never be fit to participate, or participate to a siginficant extent; cases of that nature may require considerable adjustments to be made if proceedings are to be disposed of in a way that is fair to both sides and which avoids undue delay. Here the ET thought the evidence of TL's witnesses ought to be tested (it tested them itself), but it denied O'C the opportunity to do so. The evidence was complete in 2 days, so there is no reason why the application to adjourn should have been refused altogether.