- March 21, 2013
- Posted by: Josiah Hincks Solicitors
- Category: Employment Law Updates
The Court of Appeal has underlined the overriding objective of fairness to all parties in ruling that there was no error of law in the refusal of the Employment Tribunal (ET) to grant a claimant’s application for an adjournment on medical grounds. The Court noted that such applications are routinely received by ETs and are the cause of significant inconvenience and irrecoverable costs (Transport for London v O’Cathail).
The ET was of the view that this was one of those rare cases when it was more unfair in general not to proceed than it would be to adjourn. In reaching this decision, it took into account a number of factors, including that there had been a previous adjournment at the claimant’s request; that two of the respondent’s witnesses had already become unavailable and a third was likely to become unavailable if the hearing were postponed; that costs would be wasted; that the postponement would have an effect on other claims awaiting adjudication by the ET; and that many of the claimant’s claims relied on documentary rather than oral evidence and could be fairly determined by the ET without the need for the claimant’s evidence and submissions.
After refusing an adjournment, the ET heard the case in the claimant’s absence and rejected his complaints of disability discrimination, victimisation and failure to make reasonable adjustments. The Employment Appeal Tribunal subsequently allowed the claimant’s appeal, ruling that the adjournment should have been granted, and ordered a rehearing of his case.
In allowing the employer’s appeal and restoring the ET’s decision, the Court of Appeal remarked that adjournment applications, often made late, are a common feature of ET proceedings and are the cause of significant wastage of time, effort and costs. The adjournment had been refused in a ‘scrupulously detailed and careful decision’ that contained no error of law.
Rejecting the claimant’s plea that the refusal to adjourn his case had resulted in a breach of his right to a fair hearing under Article 6 of the European Convention on Human Rights, the Court ruled that Article 6 does not compel the ET to conclude 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 any case and the hearing should be as fair as possible to both sides.