Labour & European Law Review Weekly Issue 258 01 March 2012
Tribunals have a wide discretion when deciding whether to grant or refuse an application by a claimant to postpone a hearing. However, the Employment Appeal Tribunal (EAT) said in O’Cathail v Transport for London that Tribunals should not turn down an application if the claimant would be denied a fair hearing as a result.
Mr O’Cathail started work for Transport for London on 1 June 2007, but was absent from work because of anxiety and depression from January 2008 to December 2010. It was accepted that he was a disabled person under the DDA 1995.
He submitted a claim for disability discrimination and his claim was listed for a seven-day hearing in October 2010. However, he then applied for - and was granted - an adjournment on the ground that he was unfit to attend due to his mental state. This was supported by medical evidence.
The claim was re-listed for an eight-day hearing on 21 February 2011. On 20 February (Sunday) Mr O’Cathail applied by e-mail for another adjournment on the ground that he had fallen ill after a visit to Brazil and been told to rest for a week. On the Monday morning he faxed a letter from his GP which confirmed he was unfit to attend.
Although the Tribunal accepted he was genuinely unwell, it refused his request, holding that "this is a very rare case in which we consider that it is more unfair in general for this matter not to proceed than it would be to adjourn".
It said that witnesses would find it increasingly difficult to recall the events if the case was adjourned again. In addition, two witnesses due to appear for Transport for London were already unavailable and a third was about to go to Australia. In any event, all of them were under enormous stress awaiting the outcome of the hearing which would only be resolved by letting the case go ahead.
It also had to consider the question of the expense involved in adjourning the case once again and while the issues which Mr O’Cathail was complaining about were important to him, “the overriding objective says that we must deal with matters in a way that is proportionate”.
The Tribunal added that it would only sit that week on Wednesday (by which stage it hoped he might be fit enough to attend) and Thursday before breaking until the following Monday.
Mr O’Cathail made a further application to adjourn on the Wednesday saying that the hospital thought he might be suffering from a tropical illness. Again his application was supported by a letter from his GP which said that he was unfit to attend work or a Tribunal for two weeks.
The EAT held that it could only hear an appeal if the effect of the Tribunal’s decision not to adjourn was to deny the claimant a fair hearing, as in this case. Relying on the decision of the Court of Appeal in Terluk v Berezovsky  the EAT said that the question for Tribunals to consider was whether it facilitated “a” fair solution not “the” fair solution.
As the Tribunal in this case had not challenged or questioned the medical evidence, it therefore had to proceed on the evidence that was available. In other words, that Mr O’Cathail was suffering from a respiratory infection which was being treated with antibiotics, that he needed to rest and was unfit to attend the hearing.
There was, said the EAT, no evidence to support the Tribunal’s hope that he would be well enough to attend on Wednesday - the day the Tribunal would first sit to hear his case that week.
By refusing an adjournment, the Tribunal had effectively deprived Mr O’Cathail of his legitimate expectation of giving evidence on oath, calling witnesses, questioning witnesses and addressing the Tribunal - the basic elements of a fair hearing.
The factors that the Tribunal had taken into account when deciding that it was fair to proceed may have had some weight if Mr O’Cathail had been medically fit but that was not the case. By considering that the evidence of the employer’s witnesses ought to be tested, the Tribunal had denied Mr O Cathail the opportunity to do so.