Given that tribunals have discretion under the rules to postpone a hearing, the Court of Appeal has confirmed in Morton v Eastleigh Citizens Advice Bureau (CAB) that it is essentially a case management issue. It was not therefore an error of law in this case for the tribunal to refuse a postponement to allow a medical report to be prepared.
After Ms Morton was dismissed by Eastleigh CAB in November 2016, she brought claims of disability discrimination, citing an eating disorder, depression, anxiety and agoraphobia. In their defence to the claim, the CAB challenged Ms Morton’s claim to be disabled.
Tribunal and EAT decisions
At a preliminary hearing in mid-July 2017, the tribunal instructed Ms Morton to forward medical evidence relating to her disabilities, together with a statement of the impact that they had on her ability to carry out normal day-to-day activities. This was to be sent to the CAB by the end of July.
The CAB then had to decide, by 4 August, whether or not they would continue to dispute that Ms Morton was a disabled person. If they did not agree, then the parties were told that they had to arrange for a joint medical report by 15 September.
Having received her medical evidence, the CAB conceded that Ms Morton was a disabled person in that she had a binge eating disorder. However, as they had not conceded that she was disabled on all the other grounds, Ms Morton argued that the joint medical report was still needed. The CAB disagreed on the basis that the report was only necessary if they failed to concede that she was a “disabled person".
Ms Morton applied for an order that it should go ahead. A tribunal judge held that, if she wanted to rely on all her health problems then a medical report was still needed. If she did not, then it would not be necessary. Although she confirmed in an email dated 23 October and again on 27 October that she intended to rely on all her health conditions and that the hearing should therefore now be postponed, another tribunal judge, EJ Reed, held that the hearing could go ahead on the basis of existing medical evidence and her testimony.
The hearing then took place on 30 October. Ms Morton asked again for an adjournment but this was refused on the basis that the remaining issues of disability could be addressed by relying on her existing medical evidence and her testimony. She appealed against that decision bur it was rejected by the EAT. She appealed again to the Court of Appeal on the basis that the decision was perverse.
Decision of Court of Appeal
The Court of Appeal noted that hearings can only be postponed in “exceptional circumstances” if the application is less than seven days before the hearing begins under rule 30A(2) of the Employment Tribunal Rules.
Although the Court acknowledged that there had been conflicting decisions with regard to the medical report, it confirmed that, ultimately, the decision by a tribunal to refuse an adjournment was a case management issue.
The Court also pointed out that Ms Morton had, in any event, failed to appeal against the decision by employment tribunal judge Reed that her claims could be addressed on the basis of the existing medical evidence and her own testimony. Finally, it added that she had plenty of time to prepare her case by the date of the hearing as she had supplied the medical evidence herself and was familiar with the material to be presented.
It therefore dismissed her appeal against the failure to grant an adjournment.
In some ways this is an obvious outcome, in others though it is odd. It is obvious because the wording of the order was so wide that when the respondent conceded a single disability the condition was fulfilled. However, individual acts of discrimination still need to be linked to a disability and if an act was related to (say) the claimant’s agoraphobia rather than her binge eating disorder then that still leaves as a live issue whether the non-binge eating disorder conditions were disabilities. It is an object lesson in being careful about the scope of an appeal, and in planning how you will prove your claims.