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Issue 74 (Octobe/November 2002)
ContentsUnfair dismissal protection Hitt again
Does justice delayed mean justice denied?
Robin Thompson: trade union lawyer
Developing a charter of workers' rights
Whistle blowing: follow the tune
Source of confusion
Does justice delayed mean justice denied?
Teinaz v London Borough of Wandsworth  IRLR 721(CA)
Andreou v Lord Chancellor's Department  IRLR 728 (CA)
Silver Fund Investment Co Ltd v S C James EAT/1169/01 (EAT unreported)
How employment tribunals exercise their powers to grant adjournments of hearing dates is a fraught issue. In a large number of cases postponements are sought, often shortly before the hearing date. Applicants are often cynical of an employer's motives: justice delayed is justice denied, if lawyers are involved costs will increase and the stress and uncertainty of unresolved litigation remains.
Sometimes it is the applicant who seeks an adjournment - perhaps because the stress of the proceedings and the fear of confronting former employers and colleagues or because a hoped for settlement offer did not materialise. Sometimes either side want more time to prepare the case.
These three recent cases consider the two reasons most often used for a postponement request: witness availability and the medical condition of the applicant. The cases also considered the quality of the information required by the tribunal. In all three cases - as is also frequently the case - the tribunal had refused a postponement request made at relatively short notice.
The Tribunal has a wide discretion - the Regulations simply say that a Tribunal Chairman may postpone the day or time fixed for, or adjourn, any hearing and vary any such postponement or adjournment (Rule 15(7) Employment Tribunals (Constitution and Rules of Procedure) Regs. 2001. All the rules of procedure are informed by the Tribunal's overriding objective which is to deal with cases justly. Dealing with a case justly includes ensuring that a case is dealt with expeditiously and fairly as well as ensuring that the parties are on an equal footing; saving expense; and dealing with the case in ways proportionate to the complexity of the issues. So the presumption in the overriding objective is generally against a postponement being granted.
In Silver Fund a respondent witness's holiday, which 'made him unable to attend' the Tribunal, had cut no ice and the case went ahead. No evidence of the witness' unavailability was given. An identical request for a postponement was made at the start of the hearing which was also refused and the Respondent's representative withdrew from the hearing. The Tribunal found in the Applicant's favour and also ordered £5,000 costs against the Respondent. The employer appealed. The Employment Appeal Tribunal found that there was not even an arguable case and the case was stopped from even going to a full hearing.
In Teinaz, however, the Court of Appeal criticised a Tribunal for failing to accept medical evidence which had given a clear diagnosis of severe stress. The doctor's certificate stated that Teinaz should not attend the tribunal hearing due to severe stress but the Tribunal doubted the accuracy of the Doctor's letter and decided that Teinaz had rather chosen to stay away from the hearing without directing further medical evidence to be provided.
Crucially, the Court of Appeal went on to say that a party whose presence is needed for the fair trial of his case, but who is unable to be present through no fault of his or her own, will usually have to be granted an adjournment, however inconvenient that may be to the other parties and the tribunal.
But not always. In Andreou, a case referred to in Teinaz, the Court of Appeal did not overrule a Tribunal's decision to refuse a postponement. Ms Andreou had been diagnosed with stress/anxiety by her GP shortly before a hearing which had been listed six months previously for a 10 day hearing, and the report did not address the issue of whether the applicant was fit to attend the hearing, and if so, when she would be able to do so. The Tribunal had also taken the effect of a further delay on the Respondent witnesses into account in reaching their decision.
The moral is that if you need a postponement, present as much cogent information at the earliest opportunity - full medical reports, copies of holiday bookings etc. Time will tell if the effect of Teinaz will be the more ready granting of postponements.