In the recent Employment Appeal Tribunal (EAT) case of O’Cathail v Transport for London, the EAT had to decide whether the Tribunal had been right to go ahead and hear a claim in the Claimant’s absence.
The circumstances were that the Claimant had already successfully applied for one adjournment on grounds of ill-health, and had sought a second adjournment which was refused. It was this decision of the Tribunal to refuse a second adjournment which was the subject of the appeal to the EAT.
The Tribunal had accepted that the Claimant was genuinely ill, but refused the adjournment for a number of reasons. One of the relevant factors was the time elapsed and the fact that memories would fade and both parties would be disadvantaged by this. Another factor was that one of the Respondent’s witnesses would become unavailable if the adjournment was granted. The Tribunal also took into account the fact that witnesses on both sides were stressed by the proceedings. The expense to the Respondent was also a factor, as was the drain on the Tribunal’s resources and the low value of the Claimant’s claim. The Tribunal also noted that it could test the Respondent’s evidence against the Claimant’s lengthy witness statement, which was before the Tribunal. For all these reasons (and more) the Tribunal decided to hear the claim in the Claimant’s absence. The claim was ultimately dismissed and the Claimant appealed to the EAT in respect of decision to hold the hearing in his absence.
The EAT decided that the Tribunal had been wrong to turn down the adjournment request and to decide to hear the claim without the Claimant being present.
In reaching its decision it cited a Court of Appeal decision named Teinaz v London Borough of Wandsworth, which made clear that where the Claimant’s presence is needed for there to be a fair hearing, but the Claimant is unable to attend through no fault of his own, the tribunal should usually grant an adjournment – notwithstanding the inconvenience to the parties. If the consequence of the refusal to adjourn is likely to be the dismissal of the Claimant’s claim, it is very likely that the Claimant’s presence would be required for there to be a fair hearing.
The converse will be true for applications to adjourn by respondents. If, for example, a key witness for the Respondent is genuinely and blamelessly unable to attend a hearing, the tribunal should generally allow a request for an adjournment. Medical evidence that a witness is not fit to attend will of course be of significant weight in persuading a tribunal of the genuineness of the party’s inability to attend.
This decision should not be read as indicating that the EAT will readily examine Tribunals’ decisions not to grant adjournments. An appeal can only proceed in limited circumstances where a point of law is involved, usually, where the fairness of the proceedings as a whole is jeopardised.