The court considered an appeal against a refusal of a late application for an adjournment by an employment tribunal.
Held: The appeal was allowed. There had been no error of law in the decisions of the ET to refuse adjournments either in its approach in principle to the exercise of the ET’s discretion or in the lawfulness of the outcome.
Mummery LJ (with whom Etherton and McFarlane LJJ agreed) said: ‘The crucial point of difference from Terluk’s case is that decisions of the employment tribunal can only be appealed on questions of law, whereas under the CPR the appeal is normally by way of review and the decision of a lower court can be set aside, if it is wrong, or if it is unjust by reason of a serious procedural or other irregularity in the proceedings. In relation to case management the employment tribunal has exceptionally wide powers of managing cases brought by and against parties who are often without the benefit of legal representation. The tribunal’s decisions can only be questioned for error of law. A question of law only arises in relation to their exercise, when there is an error of legal principle in the approach or perversity in the outcome. That is the approach, including failing to take account of a relevant matter or taking account of an irrelevant one, which the Employment Appeal Tribunal should continue to adopt rather than the approach in Terluk as summarised in the headnote [2012] ICR 561 quoted above. It is to be hoped that this ruling will put an end to the ‘apparent confusion in authority’ on the point pointed out by Wilkie J in Riley v Crown Prosecution Service (unreported) 13th June 2012, at paras 55-56.
. . ‘Overall fairness to both parties is always the overriding objective. The assessment of fairness must be made in the round. It is not necessarily pre-determined by the situation of one of the parties, such as the potentially absent claimant who is denied an adjournment.
. . What is fair in the interests of the parties is, in the first instance, a matter for assessment by the ET. The EAT ought only to intervene if the ET has erred in principle or produced a perverse outcome in the sense that no reasonable tribunal could have concluded that it was fair in all the circumstances to refuse the adjournment.’
Judges:
Mummery, Etherton, McFarlane LJJ
Citations:
[2013] EWCA Civ 21, [2013] IRLR 310, [2013] ICR 614, [2013] WLR(D) 31, [2013] CP Rep 2
Links:
Statutes:
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 10
Jurisdiction:
England and Wales
Citing:
Appeal from – O’Cathail v Transport for London EAT 13-Jan-2012
EAT PRACTICE AND PROCEDURE
Case management
Postponement or stay (refusal of adjournment)
The Claimant submitted medical evidence to the effect that he was unfit to attend the hearing of his claim . .
See Also – O’Cathail v Transport for London CA 20-Jul-2012
The court was asked about the power of the Employment Appeal Tribunal (EAT) to extend time for appealing from the Employment Tribunal (ET). . .
Cited by:
Applied – Brighouse Group Holdings Ltd v Bourne EAT 11-Sep-2013
EAT Practice and Procedure : Postponement or Stay – The Appellant’s solicitors made an application for an adjournment of a hearing on the grounds that the Appellant’s managing director was unable to attend by . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 13 November 2022; Ref: scu.470623