Applications to postpone or adjourn a hearing under the ET Rules 2024, including on medical grounds, and the separate question under rule 47 of whether a tribunal should dismiss a claim or proceed in a party's absence. Teinaz v London Borough of Wandsworth; Roberts v Skelmersdale College; Cooke v Glenrose Fish Co.
Procedure; postponement on medical grounds. Where refusing an adjournment would have severe consequences, such as dismissal of the proceedings, the tribunal must be particularly careful not to cause injustice. A litigant whose presence is needed for a fair trial but who is unable to attend through no fault of his own will usually have to be granted an adjournment, however inconvenient, though the tribunal must be satisfied that the inability is genuine. Article 6 ECHR underscores the need for great care with adjournment applications on health grounds. The tribunal had found that the claimant had 'chosen not to attend' despite a medical certificate advising him not to attend court; the EAT set aside the refusal and remitted, and the Court of Appeal dismissed the council's appeal.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; non-attendance; dismissal in absence. The Court of Appeal held that the rule now found in rule 47 confers a very wide discretion: where the absent party is the claimant the tribunal may adjourn, dismiss, or dispose of the claim in some other way. It imposes no duty on the tribunal to investigate the case of its own motion, nor to satisfy itself that the respondent has established a good defence — expressly including where a statutory burden lies on the employer, in which case the tribunal is still not required to hear evidence from the respondent. The tribunal is entitled to require evidence but is under no duty to do so; before exercising the discretion it must consider the pleadings and any written representations. The college's appeal was allowed: the EAT ought to have dismissed Mr Roberts's appeal against the dismissal of his claim.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; non-attendance; enquiries before dismissing. Where there is an unexplained failure by a party to attend, the tribunal is not required in every case to telephone that party, but in every case it must consider whether to do so, and must make enquiries of the other side where that party is represented. The claimant's solicitors were on the record and had helped prepare the bundle; the tribunal made no enquiries, and the dismissal was set aside on review and remitted. Southwark London Borough Council v Bartholomew considered.
Procedure; non-attendance of a respondent; review. A tribunal may not record that it is unusual for a local authority to fail to attend and yet take no steps to find out whether there has been an oversight, particularly where contact details are before it. Even if the respondent still does not attend, it was wholly inappropriate to order reinstatement without considering the matters in s.116 ERA 1996, including whether reinstatement would be just where the claimant may have contributed to the dismissal. Once the tribunal concluded that the interests of justice required its original decision to be reviewed and set aside, it could not then revoke that conclusion because the employer had not been entitled to apply, leaving in place a decision it had found unjust; it should have revoked the original decision of its own motion.
Procedure; non-attendance; proceeding in absence. The tribunal erred in hearing claims of unfair dismissal and race discrimination in the absence of one party where an explanation for the failure to attend had been provided on the day of the hearing and the party had not been advised of its right to seek an adjournment. The tribunal was required to balance the interests of both parties in doing justice between them in accordance with the overriding objective. The respondent's representative had put the wrong hearing date in her diary; the power to proceed in a party's absence is not designed to punish a party for its mistakes. The appeal was allowed by a majority and the case remitted for rehearing.
Procedure; non-attendance; review; postponement. The EAT allowed the employer's appeal against a judgment given in its absence and against the refusal to vary it on review. The tribunal erred in treating the employer's ability to recover from its insurers as showing it suffered no prejudice: that is not a proper consideration, or at most a slight one (Cooke v Glenrose). It also gave no weight to the absence of the usual telephone call when the employer failed to appear, to the diary error that explained the absence, or to the postponement sought before judgment, the representative and the employer attending shortly afterwards. Both judgments were set aside, save as to costs, and a full hearing ordered rather than a further review, finality being what the overriding objective required [13].
Procedure; non-attendance; adjournment. The tribunal ought not to have determined the claim in the claimant's absence where he had a good reason for non-attendance; failing to take that into account was an error of law, and the tribunal ought to have considered adjourning. The EAT applied Peter Gibson LJ's observation in Teinaz v London Borough of Wandsworth at paragraph 21 that a litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually be granted an adjournment.
Procedure; written submissions; right to be heard. While it is more prejudicial for a hearing to proceed in a party's absence, the gravity of denying a party's fundamental right to make submissions on the evidence and the law should not be underestimated. The claimant did not have to show that her submissions would definitely have made a difference, only a real possibility that they might have led to a different result. Depriving one party of the chance to make representations available to the other is so serious that in all but the clearest cases, where the representations would have made no difference, the tribunal should rehear the matter. The tribunal's conclusion that the claimant had not intended to send written submissions was perverse, and the case was remitted to a different tribunal.
Tribunal procedure; postponement; ill health. On an application to postpone — even one supported by unchallenged medical evidence — the tribunal must assess fairness to both sides and the public interest in the efficient conduct of litigation as a whole: fairness to the absent party is not decisive, and refusal can be lawful notwithstanding genuine inability to attend. Appellate interference with such case-management decisions is limited to error-of-principle grounds; the EAT may not simply re-ask whether the refusal was unfair.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; postponements; refusal to adjourn. The Court of Appeal (Underhill V-P and Lewison LJ) upheld the refusal to adjourn a preliminary hearing on disability status: the decisions could not be characterised as perverse where the claimant had had enough time to prepare, and it was common ground that in cases of this kind the tribunal will usually decide on contemporaneous medical material rather than a commissioned report. Postponement is a case management discretion and appellate interference is limited.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Procedure; medical evidence; postponement. The EAT upheld a tribunal's refusal to postpone the rest of a hearing after the claimant had completed her evidence [6], [74]. A postponement decision can be challenged only on perversity or Wednesbury grounds [32]. The onus is on the party seeking a postponement for ill health to show that they are not well enough to attend [50]. Where medical evidence directly addresses the proceedings and the application, the tribunal must engage with it and consider it with care; reservations about it need a proper reasoned basis, but the tribunal is not bound to defer uncritically to the clinician [68]. Even clear medical evidence of unfitness does not automatically entitle a party to a postponement [62]. The judge was entitled to conclude that nothing in the GP's letter indicated that a resumed hearing would not have the same effect [72]. The challenge to the dismissal of the s.15 EqA 2010 complaint failed [95]; appeal dismissed [96].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.