O’Cathail v Transport for London [2013] EWCA Civ 21

The latest appeal in the O’Cathail saga deals with the adjournment of C’s substantive hearing on grounds
of medical unfitness. C’s applications for postponements of his substantive ET hearing had been refused.
The EAT held that the decisions not to allow C’s applications had been ”plainly wrong” and had deprived
him of any opportunity to participate in the full merits hearing. R appealed.

Facts

C initially applied to adjourn the full hearings on the grounds of medical unfitness. This was granted in
October 2010 and the hearing was relisted for 21 to 28 February 2011. C made further applications for
adjournments on 21, 22 and 23 February 2011 which were refused. The ET gave full reasons in its
judgment: for example that the proceedings were stale and dated back to events in 2008, there had been
a previous adjournment, that delays would affect the determination of other pending claims and that, as a
matter of proportionality, the claim did not involve dismissal and would be limited to an award for injury
to feelings, that substantial ET resources had been dedicated to the claim. Mr O’Cathail appealed to the
EAT and that appeal was allowed with reference to Terluk v Berezovsky [2010] All ER (D) 270. R appealed
to the Court of Appeal where C raised that his right to a fair hearing had been contravened with reference
to Article 6 of the ECHR.

Held

The Court of Appeal allowed the appeal. The ET’s judgment had been scrupulously detailed and careful,
had cited the guidance in relevant case-law. TC did not argue that the ET had taken into account
irrelevant factors or left out relevant factors. The ET had also taken the overarching fairness into account
from both sides. The ET had not therefore erred by failing to take into account the Terluk case, which
deals with the regime under the CPR and is thus distinguishable. Furthermore the EAT’s application of the
Terluk approach had led them to substitute their own decision for that of the ET which was an error of
law. Finally, Article 6 does not compel the ET to the conclusion that it is always unfair to refuse an
application on medical grounds. The ET has to balance the consequences of proceedings against the right
of the other party to have a trial within a reasonable time and the public interest in prompt and efficient
adjudication of cases.

Comment

The decision of the Court of Appeal illustrates the difference between the CPR and the procedural regime
in employment tribunals. The Court of Appeal emphasized the crucial point of difference in respect of
these sorts of case management decisions, which is that decisions of the ET can only be appealed on
questions of law. Under the CPR the appeal is normally by way of review. The decision of Terluk, under
the CPR, gives the appellate Court a broader discretion to review the decision of the lower court which is
not applicable to employment tribunals, whose decisions can only be appealed on questions of law and
where the tribunal is granted wide case management powers.