O’Cathail v Transport for London UKEAT/0247/11/MAA

C’s case was listed for a hearing. The Claimant fell ill with a respiratory infection and said that he was unable to
attend. He made 2 applications for an adjournment. The ET held that the hearing should proceed in any event.
C appealed to the EAT. The EAT allowed the appeal.

Facts

C was dismissed by R following a lengthy absence for depression. He made complaints of bullying and
harassment. C's claim was listed for a 7 day hearing. He had previously been granted an adjournment when his
mental state made him unfit to attend. C then sought an adjournment of the relisted hearing because he had a
respiratory infection. He made an application by email which was dealt with on the first day of the hearing. He
indicated that he had been hospitalised and was now advised by his doctor to ”rest for a week”. On the morning
of the hearing C's doctor confirmed that he was unfit to attend in a fax. The ET accepted that C was ill but
decided that it was unfair not to proceed and so refused the application for an adjournment. The ET stated that
it hoped that C would be fit to attend by the 3rd day of the hearing.

Held

The EAT allowed the appeal. It considered the guidance provided by Terluk v Berezovsky [2010] EWCA Civ 1345
and Osborn & Booth v Parole Board [2010] EWCA Civ 1409 and held that it was applicable to employment
tribunal proceedings. The EAT indicated that it would only intervene where it was able to say with confidence
that the approach taken by the ET was unfair. The question was whether the decision was ”a” fair one rather
than ”the” fair one. While recognizing that the ET has a broad discretion, it held at para.35 that “there are some
decisions to... refuse an adjournment which imperil the fairness of proceedings as a whole. Where this is a
ground of appeal, the EAT must look for itself to see whether the effect of the decision has been to deny a fair
hearing to the Appellant”. The EAT held that in the absence of any further enquiry the ET was bound by the
medical evidence it had received. Since the medical evidence showed that the absence was not due to disability
the ET could not be criticized on disability grounds. However the EAT held that the tribunal was “plainly wrong”.
The practical effect of the decision was to deprive C of a hearing. C had a legitimate expectation that he would
give oral evidence and would be able to question witnesses. It was not the case that C was permanently unfit.
The ET’s finding that C might be able to attend on day 3 was not supported by the evidence. The Tribunal could
also have adjourned after the evidence to allow C to make submissions.

Comment

This case, together with the Court of Appeal case of the same name (reported at [2012] EWCA Civ 92) and Franks
v Governing Body of Churchmead School (2012/Q1/p.2) are helpful illustrations of the Court's and Tribunal’s
lenient approach to persons who are prevented from complying with time limits and procedural rules as a result
of illness or disability. Courts and Tribunals should act with considerable caution before preventing a party from
pursuing or defending their claim in these circumstances.