Trying to be fair

Khan v Vignette Europe Ltd

The European Convention on Human Rights states, among other things, that everyone has the right to a fair trial. The Employment Appeal Tribunal (EAT) has said, however, in Khan v Vignette Europe Ltd that the right to a fair hearing is not a “trump card” but is one of a number of factors that tribunals have to weigh up when considering all relevant factors.

Basic facts

After his dismissal for accessing pornographic and other inappropriate internet sites during work hours in June 2007, Mr Khan lodged a number of tribunal claims.

The case was due to be heard by a tribunal on 14 April 2008 but had to be postponed because Mr Khan was unwell.

The tribunal then wrote to both sides in May giving a fixed listing of 1 to 5 September. Mr Khan’s new solicitors asked for an adjournment on 26 August but this was refused. All the parties turned up for the hearing on 1 September at which Mr Khan asked for another adjournment because he was not ready to proceed, but this was again refused.

Third adjournment request

Then on 3 September Mr Khan made another application for an adjournment because, he said, the hearing dates clashed with Ramadan.

The tribunal also rejected this on the ground that Mr Khan had known the dates for the hearing since May and been aware for the best part of a year when Ramadan would fall in 2008.

It also rejected his argument that it would be distressing for him during a “period of mental and spiritual purity” to be caught up in the anger or upset of litigation and a case in which he would have to consider sexually explicit images. The tribunal said that it would direct the contents and style of cross-examination and that the evidence of the sexual material (which he himself had watched at length) would not be dealt with in a way that was “disproportionate or prurient”.

It also rejected his argument that not granting him an adjournment was a breach of article 6 (right to a fair trial) and article 14 (right of non discrimination) of the European Convention on Human Rights. Instead, it said these rights had to be balanced against the company’s right to a trial within a reasonable time and the public interest in bringing litigation to a close.

The rest of the hearing - which dismissed his claims - was conducted in his absence. Mr Khan appealed on the basis that the failure to adjourn meant he had been denied a fair trial under article 6.

EAT decision

The EAT, however, disagreed. It said that it could not find any “error in the Tribunal's approach or reasoning which would permit us to interfere with what was plainly a discretionary decision, arrived at after carefully balancing all the relevant factors, and which cannot, even arguably, be said to be perverse”.

The tribunal was entitled to have regard to the point in time when Mr Khan first raised the issue of his beliefs and to conclude that he had not taken even the most basic steps to avoid a hearing that clashed with Ramadan. The tribunal had also been correct when it concluded that Mr Khan’s religious views and his right to a fair hearing were not a “trump card” but an important factor to be weighed in the balance.

It concluded that the tribunal had approached the issue with “conspicuous care and sensitivity” and had arrived at a careful, balanced decision which was open to them on the facts.