Labour & European Law Review Weekly Issue 392 22 October 2014
Employment judges can adjourn an oral application for a review of a decision to give the claimant time to decide what to do. In U v Butler & Wilson Ltd, the Employment Appeal Tribunal (EAT) held that a judge made an error of law by failing to grant a short adjournment to allow a litigant in person, who has a disability, a brief time to recover to present their case or to get the material they need to present it.
The claimant, known as U, lodged a number of different claims including one for disability discrimination arising from post traumatic stress disorder in September 2011. A case management discussion and pre hearing review or PHR (now known as a preliminary hearing) was held on 20 December to consider the employer’s application that the claims should be struck out.
At that hearing the tribunal judge made a number of case management orders including one that U should add relevant documents to the employer’s bundle and exchange witness statements. The hearing ran over the allotted time and another date was set for 16 February, listed for three hours.
U then arrived an hour late for the PHR by which time the judge had already struck out his claims for failing to comply with the case management orders. U told the judge that he was having a psychotic episode and that the documents to comply with the orders were at the printers next door. He also said that he had a witness statement although he did not have a copy.
The judge explained that as she had already struck out his claims he could apply to review her decision and she would agree to a review. U said that the stress of complying with the orders induced the psychotic episode although he did not have any medical evidence to support this. The judge refused to grant a short adjournment and as he had not produced any medical evidence showing why he had failed to comply, she dismissed his review.
Grounds for appeal
U appealed on the basis that, having indicated he wanted the judge to review her decision she then failed to consider whether to adjourn for a short time to enable him to recover his lucidity and obtain the bundle of documents from the printers next door.
He also asserted that the bundle (on which he wanted to rely) included medical reports from a doctor explaining his reasons for failing to comply with the case management orders.
The EAT agreed with him, holding that anyone conducting a judicial or quasi judicial hearing who is confronted with someone whom the judge knew to have a disability should adjourn the hearing for a brief time to enable them to recover enough to present their case or to get the material they need to present it. The judge’s failure to grant a brief adjournment meant that U’s appeal succeeded.
Although not part of the appeal, the EAT also criticised the judge for omitting to tell U that he did not have to make the application for review straight away. By failing to tell him that he had up to 14 days from the date on which the reasons were sent to both parties, she had “laid a trap for the unwary which was exacerbated by her failure to consider adjourning the hearing, for a short time … so as to enable the oral application … to be made as effectively as was practicable.”
The EAT granted U 21 days to submit an application for review by a different employment judge.
Although the EAT was at pains to make clear that the case was fact specific and that nothing it said should be taken as amounting to any precedent or guidance beyond the case, the judgment does indicate that in circumstances where it is so obvious, as in this case, a tribunal should apply its wide discretion to allow a claimant time to comply with case management orders. A failure to do so may give rise to a ground of appeal.