Although not dealing with any new principles of law, the decision of the Employment Appeal Tribunal in the case of O’Cathail v Transport for London provides useful guidance about how tribunals should approach requests for adjournments from claimants on the ground of ill health.
It is well known to those who appear regularly at tribunal hearings (and other court hearings for that matter) that witnesses, including claimants, can find giving evidence and being subjected to cross examination a daunting ordeal. There is therefore often suspicion that those who say they are too unwell to attend the hearing are sometimes simply trying to avoid the hearing. Of course, as in all other walks of life, genuine illnesses can affect everyone and it’s often easy to identify that the person concerned clearly cannot attend the hearing.
However, particularly in tribunals where costs are generally not recoverable, the costs incurred as the result of an adjournment can be considerable (possibly including substantial barristers’, solicitors’ and expert witnesses’ costs) and a cynic might take the view that a late adjournment might even promote an offer in settlement of a claim in order to avoid further costs resulting from the adjournment.
Mr O’Cathail brought a number of claims against his former employers Transport for London (TfL). One, a disability discrimination claim, was due for hearing on 4 October 2010 for seven days. Mr O’Cathail sought an adjournment on mental health grounds supported by medical evidence, which was granted. The hearing was re-listed for eight days from 21st February 2011, but on 20th February Mr O’Cathail again sought an adjournment due to ill-health.
He provided evidence of his respiratory infection by way of prescriptions, a discharge summary from hospital advising a week’s rest, and a letter from his GP stating he was unfit to attend a hearing. However, the tribunal refused the adjournment, deciding that "certain powerful factors" meant – in line with the overriding objective (to ensure the fair and efficient administration of justice) – it was more unfair to adjourn than to proceed: the case was stale, witnesses were stressed now, this case was causing a "log jam”" of both Mr O’Cathail’s other cases and other people’s claims and the costs of further adjournment would be considerable (especially to TfL).
His Honour Judge Richardson in the Employment Appeal Tribunal decided that whether an adjournment should be allowed is ultimately a question of law:
" In our judgment the starting point must be that the law requires a fair hearing to be afforded to parties where (as in tribunal proceedings) their civil rights are determined. This requirement flows from the common law, is reinforced by article 6 of the European Convention [right to a fair hearing], and is a minimum requirement. Whether a tribunal has met this fundamental minimum requirement is a question of law.
There are however some decisions to grant (or more usually refuse) an adjournment which imperil the fairness of the proceedings as a whole. Where this is a ground of appeal, the Appeal Tribunal must look for itself to see whether the effect of the decision has been to deny a fair hearing to the appellant."
In this case, taking into account that the onus was on Mr O’Cathail to provide evidence of his unfitness to attend the hearing, the tribunal had not challenged that evidence and made no further enquiries. In these circumstances the decision was plainly wrong and deprived Mr O’Cathail of a fair hearing. Notwithstanding the resulting delay the tribunal should not have proceeded, and the matter was remitted to a fresh tribunal for a re-hearing.
Late adjournments are obviously irritating but the interests of justice require that a claimant should have a fair opportunity to put his or her case. This decision from the Employment Appeal Tribunal reinforces that, although it may be difficult to challenge a medical report of unfitness, for example from a GP, tribunals are bound to give the claimant the benefit of the doubt.