Peter Edwards and Lucinda Harris successful in TfL Court of Appeal case

The Court of Appeal (Mummery LJ, Etherton LJ and McFarlane LJ) has handed down Judgment in Transport for London v O’Cathail in which Peter Edwards and Lucinda Harris appeared successfully for the Appellant, Transport for London (“TfL”).

TfL appealed the decision of the Employment Appeal Tribunal (“EAT”) to allow Mr O’Cathail’s appeal against the decision of the Employment Tribunal (“ET”) to refuse his application for a second adjournment of the substantive hearing on ill-health grounds.

The appeal raised two issues that are fundamental to the administration of the ET system, namely:

(a) The test to be applied by an ET in determining whether it is appropriate to reject an adjournment application and proceed with a substantive hearing in the absence of a party (usually the claimant) in circumstances in which that party has medical evidence stating that he/she is unfit to attend the ET; and

(b) The test to be applied by the EAT, as the appellate Court, in respect of appeals against an ET’s decision to proceed, or not to proceed, with a substantive hearing in those circumstances.

These issues are of considerable importance since ETs are routinely faced with adjournment and postponement applications, often at the last minute, on the basis of an assertion that the claimant is unfit to attend the hearing.

The Court of Appeal held that there was no error of law in the judgment of the ET in refusing to exercise its broad discretion to grant an adjournment where it was clear that anxious consideration had been given to taking the exceptional step of refusing an adjournment applied for on unchallenged medical grounds.

Mummery LJ, giving the leading judgment in the Court of Appeal, emphasised that overall fairness to both parties is always the overriding objective. The ET has to balance the adverse consequences of proceeding with the hearing in the absence of one party against the right of the other party to have a trial within reasonable time and the public interest in prompt and efficient adjudication of cases in the ET.

Further, the test to be applied by the EAT when determining an appeal against an ET’s decision to proceed, or not to proceed, with a substantive hearing where a claimant is unable to attend on ill-health grounds is whether there has been an error of law. It is not for the EAT, as it had done in this case, to look for itself to see whether the ET’s decision was a fair one. Mummery LJ said that he 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. The Crown Prosecution Service.

Peter and Lucinda were instructed by Josie Dye at Eversheds and Louise Shaw at TfL.

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Peter Edwards and Lucinda Harris successful in TfL Court of Appeal case

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