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; the Court of Appeal held that a litigant whose presence is needed for a fair trial but who is unable to attend through no fault of his own will usually be granted an adjournment. Article 6 ECHR demands that tribunals approach medical adjournment applications with great care. The Tribunal's refusal of an adjournment was set aside where it drew an unjustified inference that a claimant had 'chosen' not to attend when he had a doctor's advice not to do so.
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 dismissal was restored and the EAT reversed.
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; review; non-receipt of the claim form. The tribunal refused a review on the deemed-service ground but granted one in the interests of justice where the originating application had not in fact come to the employers' attention. Considered and in part corrected in Cooke v Glenrose Fish Co on the question of what enquiries a tribunal should make of an absent party.
Procedure; written submissions; right to be heard. While it is more prejudicial for a hearing to proceed in the absence of a party, the gravity of denying a party's fundamental right to make submissions on the evidence and the law should not be underestimated. Where the tribunal never received the claimant's written submissions through a mishap, it erred in dismissing the claim without seeking to ascertain whether she had in fact sent them. The claimant did not have to show the submissions would definitely have made a difference, only that there was a real possibility.
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.
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.
Procedure; medical evidence; the EAT underscored that Tribunals must engage with medical evidence 'with care' (Para 68). While postponement/expedition applications are highly fact-specific, specific medical evidence remains crucial for ensuring Article 6 rights and making reasonable adjustments to the hearing process.
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.
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; 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].