PRACTICE AND PROCEDURE – Case management
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
The argument that in cases involving a disabled person where an ET had failed to make a reasonable adjustment by extending the time for complying with a procedural (case management) Order or postponing or adjourning a hearing fell to be considered by the EAT making its own decision as to what was proportionate, fair and just and not by a conventional appellate scrutiny as to whether there was an error of law was rejected. This was not the inevitable consequence of the judgment of the Supreme Court in R (Osborn) v Parole Board [2013] UKSC 61, [2014] 1 AC 1115 as argued in an article by Ms Claire Darwin of counsel starting at page 423 of the Industrial Law Journal 2016 and accepted (obiter dictum) by the EAT in Rackham v NHS Professionals Ltd UKEAT/0110/15/LA and by the Court of Appeal in Northern Ireland in the case of Galo v Bombardier Aerospace UK [2016] NICA 25.
In the civil jurisdiction the need to take account of fundamental rights has been recognised as part of the exercise of a judicial discretion as to whether or not a case should be adjourned or a judgment set aside (see Bank of Scotland plc v Pereira [2011] 1 WLR 2391, Levy v Ellis-Carr [2012] EWHC 63 Ch, Decker v Hopcraft [2015] EWHC 1170 QB, Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 734, Forrester Ketley v Brent [2012] EWCA Civ 324, TBO Investments Ltd v Mohun-Smith and Another [2016] EWCA Civ 403, [2016] 1 WLR 2919 and Emojevbe v Secretary of State for Transport [2017] EWCA Civ 934); likewise in the jurisdiction of the ET (see Teinaz v London Borough of Wandsworth [2002] EWCA Civ 1040, [2002] ICR 1471).
But this need to take account of proportionality in respect of the impact of decisions on those suffering a disability did not lead to a different approach to appellate scrutiny and whilst expressing the current approach as ‘Wednesbury unreasonableness’ might not always be understood as requiring a thorough scrutiny as to whether there had been an error of law, the alternative proposed of this Tribunal making its own decision as to what was fair and just was not acceptable not least because of the statutory jurisdiction of this Tribunal. Consequently, O’Cathail v Transport for London [2013] EWCA Civ 21, [2013] ICR 614 and Riley v Crown Prosecution Service [2013] EWCA Civ 951, [2013] IRLR 966 have not been overruled and remain binding on this Tribunal.
The judgment of a division of the Tribunal in Pye v Queen Mary University of London UKEAT/0151/15/MC would be followed in preference to the obiter dictum in Rackham and the decision in the NICA in Galo whilst providing admirable guidance and undoubtedly correct in the result, in so far as the approach to appellate scrutiny differed from that in Teinaz and O’Cathail, was an erroneous decision of an appellate Tribunal hearing appeals from a Tribunal of first instance and thus of equivalent status to this Tribunal and would not be followed; Lock and Another v British Gas Trading Ltd (No. 2) UKEAT/0189/15/BA, [2016] IRLR 316 applied.
Citations:
[2018] UKEAT 0050 – 16 – 2702
Links:
Jurisdiction:
England and Wales
Employment
Updated: 05 April 2022; Ref: scu.605648