EAT Practice and Procedure – Bias, misconduct and procedural irregularity -postponement or stay
Fair hearing – postponement/adjournment of proceedings
The Claimant – a litigant in person suffering from mental health issues but not lacking capacity for the purposes of the Mental Capacity Act 2005 – had received medical advice that he was unfit to participate in the Full Merits Hearing of his ET claim. Although, at an earlier stage, the ET had itself proactively asked for the medical advice in this regard and had advised the Claimant of his right to seek a postponement of the hearing, he had not done so; at one stage expressing his concern that the on-going proceedings made his health worse. There had also been correspondence between the parties shortly before the Full Merits Hearing, in which the Respondents had set out the different options should the Claimant then seek a postponement of the hearing (including the potential applications to strike out and/or seek costs that might be made) and the issue was also canvassed in the Respondents’ opening submissions, which the Claimant had the opportunity to read on the first day of the hearing. At the outset of the Full Merits Hearing, the ET clarified with the Claimant that he wished to proceed and discussed with the parties the reasonable adjustments that would need to be put in place. The ET did not expressly remind the Claimant of his right to apply for a postponement or adjournment of the hearing but he was aware that it was open to him to do so and he decided not to make such an application. The hearing proceeded with appropriate adjustments being made to enable the Claimant’s participation but he broke down when being cross-examined and the Respondents applied to bring the questioning to an end, notwithstanding that the Claimant had said he was willing to continue. The ET agreed with the Respondents and the parties moved on to closing submissions, with the Claimant having a long weekend to consider the Respondents’ submissions and then to make his own points in reply. Having considered all the evidence and submissions, the ET dismissed the Claimant’s claims.
The Claimant appealed on the basis that he had been denied a fair hearing, specifically arising from (i) the ET’s failure to proactively adjourn the proceedings at the outset of the hearing, or at least raise the possibility of the Claimant making an application to this effect; and (ii) the decision to bring cross-examination to a halt rather than adjourning the hearing at that stage to permit the Claimant time to recover.
Held: dismissing the appeal
Allowing that the appellate Tribunal must itself determine whether a fair procedure was followed at first instance (R (Osborn) v Parole Board [2014] AC 1115 SC, Rackham v NHS Professionals Ltd UKEAT/0110/15/LA, and Galo v Bombardier Aerospace UK [2016] IRLR 703 NICA, applied), in this case the Claimant had not been denied a fair hearing. As he had acknowledged, he was aware of his right to seek a postponement or adjournment at the outset of the hearing but had determined not to do so. The ET had made all appropriate reasonable adjustments thereafter and the Claimant had been able to participate in the hearing and present his case until he broke down in cross-examination. At that stage, the ET adopted an appropriate course in acceding to the Respondents’ request to stop the evidence. In truth, it was a matter for the Respondents as to whether they challenged the Claimant’s evidence by cross-examination; the decision not to continue to do so gave rise to a risk for the Respondents, it did not deny any right of the Claimant. Moreover, the Claimant was still able to present his case and respond to the case against him: he had already cross-examined the Respondents’ witnesses, was able to rely on his own witness statement and had the opportunity to make closing submissions in response to the Respondents’ arguments. Viewed overall, the hearing had been fair.
Judges:
Eady QC HHJ
Citations:
[2017] UKEAT 0230 – 16 – 2507
Links:
Jurisdiction:
England and Wales
Employment
Updated: 28 March 2022; Ref: scu.591131