HIS HONOUR JUDGE RICHARDSON
1.
This is an appeal by Dr Claudius D’Silva (“the Claimant”) against a
judgment of the Employment Tribunal sitting in Manchester (Employment Judge
O’Hara presiding) dated 2 April 2009. By its judgment the Tribunal
dismissed the Claimant’s claim against Manchester Metropolitan University (“the Respondent”).
2.
This hearing is concerned with the question whether the Employment
Tribunal erred in law in refusing to adjourn the hearing which led to the
judgment. The Claimant had applied to adjourn the hearing on the ground that he
was not fit to conduct the proceedings properly and was unable to obtain
representation without an adjournment.
3.
At a preliminary hearing of this appeal, where the Claimant was
represented by Mr Michael Duggan under the Employment Law Appeal Advice Scheme,
the Appeal Tribunal identified that the Claimant’s case on this question was
arguable, and granted permission to amend the Notice of Appeal, which now
states the grounds of appeal succinctly. The Claimant’s Notice of Appeal
originally set out other grounds. These were dismissed at the preliminary
hearing; and the Claimant’s application for permission to appeal against that
decision was dismissed by Rimer LJ on 1 February 2011.
The procedural background
4.
On 1 September 1993 the Claimant, who is black and of Indian ethnic
origin, commenced employment with the Respondent as a senior lecturer in the
Chemistry Department. Between 2002 and 2004 he brought five separate claims to
the Employment Tribunal. The first was compromised; the others were consolidated
and listed for a 4 week hearing commencing on 18 April 2005, over which
Employment Judge O’Hara (as she now is) presided.
5.
It is relevant to mention that shortly before these proceedings were due
to begin and at the beginning of the proceedings there were applications to
adjourn them both on the grounds that the Claimant wished to be represented,
his union having ceased to represent him, and on the grounds of his own
ill-health. These applications included a letter written on the Claimant’s
behalf by the Ethnic Minority Group dated 31 March; a letter of the
Claimant dated 4 April; a letter of the Claimant’s wife dated 12 April; a
further letter of the Ethnic Minority Group dated 12 April; and oral
submissions made by a representative for the Claimant on 18 April.
6.
As regards his ill health, the Claimant produced letters from a
consultant psychiatrist, Dr Ghosh. By letter dated 3 April Dr Ghosh said:
“I have interviewed Dr D’Silva today for Assessment and Report
and would like to confirm, prior to authoring his Psychiatric Report, that he
is suffering from Recurrent Depressive Disorder, Current Episode Moderate with
Somatic Syndrome (ICD 10 – F33.11) and Reacton to Severe Stress and Adjustment
Disorder (ICD 10-F43.22).
In my opinion, due to his present mental illness as stated
above, he is unable to attend the Tribunal/Court and comply with the procedure
or instruct his legal representative. From my point of view his attendance to
the Tribunal/Court would be detrimental to his mental health.”
There were further letters by Dr Ghosh to similar effect dated 11
April and 17 April.
7.
The Employment Tribunal refused the Claimant’s application for an
adjournment. It proceeded to hear the case in his absence. Remarkably, the
hearing occupied 14 days – 4 days reading statements and 18 days hearing
evidence. The Tribunal then adjourned to deliberate. It was to take 3 days
over its deliberations.
8.
While the Tribunal was deliberating the Claimant appealed to the Appeal
Tribunal against the refusal of an adjournment. His Honour Judge Serota QC
delivered a judgment in favour of allowing the appeal, essentially on the
grounds that in the light of the medical evidence the Tribunal ought to have
granted an adjournment. However, Judge Serota’s judgment was a nullity: he sat
alone, whereas the judgment below had been by a full Tribunal. After
discussion and negotiation the Claimant withdrew his appeal. So the Employment
Tribunal concluded its deliberations and delivered judgment dated 9 October
2006. By its judgment it upheld the Claimant’s claim in six separate respects,
while dismissing the remainder of his complaints.
9.
Against this judgment the Respondent appealed. On 26 September
2007 the appeal was allowed. In most respects the findings of the Tribunal
were simply set aside. But one finding was remitted to the same Tribunal for
re-hearing. This related to the manner in which the Vice Chancellor responded
to attempts by the Claimant to raise a grievance.
10.
It was this re-hearing which the Tribunal (after case management
discussions) undertook from 16-18 December 2008 and between 9-10 March 2009.
Prior to the re-hearing the finding which was remitted had been broken down
into two issues. These were the issues which the Tribunal decided by its
judgment.
The Claimant’s
application for an adjournment
11.
On Friday 12 December 2008 the Tribunal received a letter from the
Claimant’s solicitors, Hudgell and partners. They informed the Tribunal that
as of that day they were no longer representing the Claimant; and the Claimant
had withdrawn instructions from counsel who had been representing him. He had
asked them to inform the Tribunal that he sought an adjournment of the hearing
on the grounds of his lack of representation and his unfitness to represent
himself or give evidence. The Respondent wrote strenuously opposing the
application for an adjournment. The application was refused by the Regional
Employment Judge.
12.
On Tuesday 16 December the Claimant attended the Tribunal and renewed
the application. The Tribunal summarised his application as follows:
“29. On 16th December the claimant attended and renewed the
application to postpone. He did not produce any medical evidence to support his
application. He said that he was continuing to suffer from anxiety and depression.
He had been unable to get an appointment with his GP. He had sought a
certificate from his GP to say that he was not fit to attend the Hearing. His
GP had not provided him with such a certificate because some new regulations
provided that he or she would only do so if ordered to by the Tribunal. The
arrangements with his previous solicitors and counsel had ended the previous
Friday and the insurers had told him that it was too short notice to obtain
alternative counsel. He had approached the Council for Ethnic Minorities in London who had also been unable to represent him at such short notice.”
13.
We have seen a letter dated 13 December, evidently written by the
Claimant which appears to set out the arguments summarised by the Tribunal.
14.
The application was opposed by Mr Gilroy for the Respondent. The
Tribunal summarised Mr Gilroy’s position as follows:
“32. For his part Mr Gilroy objected to the applications on the
basis that they were so fundamentally devoid of merit. On the issue of the
application to postpone the Hearing, he said that the absence of any medical
evidence was indicative that the application was without merit. The fact that
the Hearing related to factual matters going back over a long period was one
which militated against a postponement at this late stage. He also pointed to
the fact that the claimant had himself been complaining about delay. Although
the claimant was not legally qualified he had a lot of experience of Tribunal
procedure and discrimination cases and would be less disadvantaged representing
himself than other lay people.”
15.
The Tribunal included in its reasons the following summary of the legal
position.
“13. In relation to the power in Rule 10 of the ET Rules of
Procedure 2004, the Tribunal has a discretion to adjourn or postpone the
hearing. The decision in Teinaz v London Borough of Wandsworth [2002] ICR 1471 specified that the discretion must be exercised judicially and
consistently with the Overriding Objective in Rule 3. This includes
considerations of fairness, efficient disposal of cases, ensuring that the
parties are on an equal footing and justice. All of the factors listed must be
considered within what is reasonably practicable. It was suggested by the Court
of Appeal in its judgment in Teinaz that the right to a fair trial under
Article 6 of the European Convention on Human Rights will usually require a
postponement when a litigant cannot attend a scheduled hearing through no fault
of his or her own, however inconvenient that may be to the Tribunal or the
other party. However, the Court also stated that medical evidence relied on to
show that a litigant was too ill to attend must be adequate.”
16.
The Tribunal refused the application. It incorporated its reasons in
written reasons given with its judgment. It stated:
“35. The reason the Tribunal refused the application to postpone
was firstly, the absence of medical evidence. The principles on which Tribunal
will put off Hearings on the grounds of the ill health of a party are
established in decision of the Court of Appeal in Teinaz and set out
above. The Tribunal was also mindful of the history of this particular claimant
in the context of applications for postponements on grounds of ill health being
timed coincidentally with a sudden loss of representation.
36. Secondly, the Tribunal considered the recent loss of
representation. The Tribunal considered that the Overriding Objective as
applied to the circumstances did not require the postponement of the
commencement of the Hearing. The Tribunal took note of that fact that the
claimant had considerable experience of Tribunal proceedings and was clearly
familiar with legal principles relevant to the case. The Tribunal also noted
the history of this case and the need for resolution of the outstanding issues.
The fact that the hearing was concerned with two discrete issues was another
factor which prompted the Tribunal to decide that it would not be appropriate
to postpone the Hearing. The nature of those two discrete issues was well known
to the claimant who had had many months to prepare for the Hearing. The
Tribunal would be able to guide the claimant of any procedural issues which
might arise about which he might ask.”
Subsequent events
17.
Following refusal of the adjournment the Claimant took part in the
hearing between 16 and 18 December. He gave evidence and was cross examined.
Mr Okoje and Mr Creary gave evidence on his behalf. The case was adjourned
part-heard.
18.
In the meantime the Claimant was seen by Dr Ghosh who prepared a report
dated 30 December 2008. In this report Dr Ghosh describes the Claimant as
suffering from a recurrent depressive disorder, his current episode being
mild. He pointed out that in an earlier report he recommended a programme to
manage the Claimant’s symptoms. This had not been carried through. The
Claimant’s depression had improved marginally but still persisted. He again
recommended a programme to assess and manage his symptoms. He considered that
the Claimant would most probably recover within a year. He did not suggest
that the Claimant was unfit to attend the Tribunal or represent himself.
19.
On 20 February 2009 Dr Ghosh also wrote to the Claimant’s GP. In that
letter he confirmed that the Claimant had required the report dated 30 December
for his ongoing legal proceedings. When Dr Ghosh wrote to the Claimant’s GP he
did not suggest that the Claimant was unfit to attend the Tribunal or represent
himself.
20.
On 28 February the Claimant wrote to the Tribunal. He said that in view
of his continuing anxiety and stress he was unable to prepare either the
cross-examination questionnaires or cross-examine witnesses. He said he would
arrange representation for the part-heard case. He did not ask for the hearing
to be adjourned.
21.
At the hearing on 9 and 10 March the Claimant was represented by Mr
Deman of the Council for Ethnic Minorities. The hearing was completed.
Judgment was reserved. In its judgment the Tribunal found that the Claimant
had not shown that he suffered less favourable treatment on the matter remitted
to it.
22.
The parties were not in agreement today as to whether Mr Deman made a
further application for an adjournment. Mr Gilroy QC on behalf of the
Respondent said to us that Mr Deman complained about the refusal of an
adjournment in December without making a separate application for an
adjournment. The Claimant’s recollection was the contrary.
Preliminary points
23.
This morning, in a preliminary submission, the Claimant applied for an
adjournment and raised a question as to whether Lady Drake ought to sit on this
appeal. We refused the application for an adjournment and confirmed that Lady
Drake would sit. We said that we would give our reasons in our judgment.
24.
As to the former, the position is as follows. The Claimant says that
until 27 January he was expecting to be represented by Mr Deman, who appeared
for him at the hearing in March 2009. However on that day he learned that Mr
Deman would be unavoidably detained abroad due to dental treatment: he produced
documentary evidence as to this. He applied to the Appeal Tribunal for an
adjournment. The adjournment was refused by the Deputy Registrar on or about 4
February, now a week ago.
25.
The Claimant did not appeal the refusal of an adjournment. Rather he
completed his preparations for the case, finalising and correcting the bundle
of documents which runs to some 600 pages, lodging and then revising his
skeleton argument, and producing his list of authorities. Only this morning
did he renew the application at the start of the appeal.
26.
For reasons which we shall explain further in a moment, we are conscious
of the advantage to a litigant in person of representation at an appeal. A
litigant may appear or be represented at the Appeal Tribunal by any person he
desires to represent him: section 29(1) of the Employment Tribunals Act
1996. Generally speaking, the overriding objective will be furthered if a
litigant is represented by someone with experience of representation in the
Tribunal or on appeal. For the overriding objective, see rule 2A of the Employment
Appeal Tribunal Rules 1993.
27.
However, these considerations have to be balanced against the manifest
disadvantages of adjourning the case. Once the appeal has been prepared on all
sides and the parties are in attendance an adjournment would be very wasteful
of time and resources on all sides. Dealing with cases justly includes, where
practical, dealing with them expeditiously, and in a way proportionate to what
is at stake.
28.
We have asked ourselves whether it is fair for the appeal to continue
with the Claimant representing himself. We took the view that it would be fair
if he were to do so, and having listened to the appeal on both sides we are
satisfied that it has been fair to expect him to do so. He is an intelligent
man. He prepared a skeleton argument dealing with the issues. He has been
able to address us in support of his appeal. We adjourned to give him a break
before he had to respond to the relatively short oral submissions of Mr
Gilroy. It seems to us that he was able to make submissions and that he had a
fair opportunity to do so.
29.
For these reasons, applying the overriding objective but with the
fairness of the hearing our primary objective, we have taken the view and held
to the view that an adjournment was and is not required.
30.
The Claimant questioned whether Lady Drake ought to sit on the appeal,
producing an extract from Wikipedia which suggested that she was a member of
the Equality and Human Rights Commission. He told us that Mr Deman has brought
a case against that body and that he has given a witness statement in support
of Mr Deman’s case. The extract from Wikipedia is out of date. Lady Drake
ceased to be a member of the Commission in September 2009. He also questioned
whether her positions in the union movement in any way disqualified her. He
informed us that he has brought proceedings against the Universities and
Colleges Union or a predecessor. Lady Drake has never been employed by that
union or any predecessor; she is indeed not currently an employee of a union at
all. We are sure that, armed with this information, no fair-minded observer
would conclude that there was a real possibility of bias.
The appeal
31.
The amended grounds of appeal criticise the Tribunal for not granting
the application even though it was apparent from the correspondence it received
that the application was genuine. The amended grounds also make reference to
the report of Dr Ghosh, delivered between the two hearings, as demonstrating
that his application was genuine. It is argued that the Tribunal ought to have
adjourned the proceedings in December 2008 given the representations made to
the Tribunal about the Claimant’s mental condition and to enable him to obtain
proper representation.
32.
There is a particular criticism of the Tribunal for taking into account what
it said was “the history of this particular claimant in the context of
applications for postponements on grounds of ill health being timed
coincidentally with a sudden loss of representation”. In submissions to the
Appeal Tribunal at the preliminary hearing Mr Duggan, who then represented the
Claimant, said that there was only one such instance in this case and none in
any other case: see paragraph 14 of the judgment of the Appeal Tribunal
relating to the preliminary hearing.
33.
The Claimant has supported these submissions before us today and in a
detailed skeleton argument.
34.
He submits that, although there is no absolute right to representation,
there is an absolute right to be dealt with fairly. The desire to be
represented, even by a particular person, is to be taken into account when
considering whether a hearing is to be adjourned. He has cited from decisions
of the Social Security Commissioner on this question, emphasising the potential
value to a litigant of representation at a hearing.
35.
He submits that in taking the decision to adjourn the Tribunal had
impermissibly relied on the assertion that the Claimant had “repeatedly” made
applications for postponements. He says in his written skeleton argument that
he refutes this and that he has “not repeatedly made applications to the O’Hara
tribunal for adjournment.” This was a matter which it was improper to take
into account: he cites Teinaz v London Borough of Wandsworth
[2002] IRLR 721 at paragraph 20 -22, 37 and 39.
36.
He submits that the Tribunal should have appreciated and taken into
account that he was unable, in the short time available, to obtain medical
evidence, and should have awaited Dr Ghosh’s report. He submits that when it
came the Tribunal should have acted on Dr Ghosh’s report, regarding it as
credible fresh evidence. He cites Asim v University Hospital Birmingham NHS Trust [2010] UKEAT/0094/10, BAILII: [2010] UKEAT 0094_10_1706, by way of analogy.
37.
On behalf of the Respondent Mr Paul Gilroy QC submits that the
Employment Tribunal had a wide albeit principled discretion as to whether to
grant an adjournment: he referred us to Jacobs v Norsalta [1977]
ICR 189 and to Bastick v James Lane (Turf Accountants) Ltd [1979]
ICR 778 (at 782), both approved by the Court of Appeal in Carter v Credit
Change Ltd [1980] 1 All ER 252; and to Teinaz and Andreou
v Lord Chancellor’s Department [2002] IRLR 728. He submits that the
Tribunal had these principles well in mind, making express reference to Teinaz.
38.
Mr Gilroy QC has taken us through the history of the proceedings,
demonstrating that the Claimant has applied for adjournments at short notice.
At the commencement of a 3 day hearing in September 2003 he applied for an
adjournment on the grounds that he was not fully prepared and had instructed
legal representatives at the last minute: the adjournment was refused. A
hearing in October 2004 was postponed at the Claimant’s request on the grounds
that he was not able to prepare his latest case in time. There were the
applications by the Claimant and by Ethnic Minority Group to which we have
referred in 2005.
39.
We referred the parties to two recent decisions of the Court of Appeal
on the test which an appellate court ought to apply when reviewing a decision
relating to procedural fairness: Terluk v Berezovsky [2010] EWCA Civ 1345 (25 Nov 2010) followed in Osborn & Booth v Parole
Board [2010] EWCA Civ 1409. These support the submission of the
Claimant that the key issue for the Appeal Tribunal is whether it was fair to
adjourn the hearing and whether in consequence of the refusal of an adjournment
the hearing was fair.
40.
We mention one final point. As a result of a submission of Mr Gilroy to
the effect that the Claimant may, by reason of ill-health, have been
disadvantaged in dealing with cross examination, the Appeal Tribunal at the
preliminary hearing ordered the Employment Judge to produce her note of cross
examination; and ordered the Claimant to lodge within 14 days of receipt of the
notes of evidence a document identifying those matters on which he says he now
realises he was at some disadvantage by reason of his medical state. We have
read and taken into account the notes of cross examination and the affidavit
which the Claimant has produced, in addition to his skeleton argument.
Conclusions
41.
We think the proper starting point for the Appeal Tribunal is to
consider whether the refusal of an adjournment rendered the hearing of the
Tribunal unfair. In doing so we follow the principles set out in Terluk
v Berezovsky.
42.
In Terluk Sedley LJ said:
“18. Our approach to this question is that the test to be
applied to a decision on the adjournment of proceedings is not whether it lay
within the broad band of judicial discretion but whether, in the judgment of
the appellate court, it was unfair. In Gillies v Secretary of State for Work
and Pensions [2006] UKHL 2, Lord Hope said (at §6):
‘[T]he question whether a tribunal ... was acting in breach
of the principles of natural justice is essentially a question of law.’
As Carnwath LJ said in AA (Uganda) v Secretary of State for
the Home Department [2008] EWCA Civ 579, §50, anything less would be a
departure from the appellate court's constitutional responsibility. This ‘non-Wednesbury’
approach, we would note, has a pedigree at least as longstanding as the
decision of the divisional court in R v S W London SBAT, ex parte Bullen
(1976) 120 Sol. Jo. 437; see also R v Panel on Takeovers, ex p Guinness PLC
[1990] 1 QB 146, 178G-H per Lord Donaldson (who had been a party to the Bullen
decision) and 184 C-E per Lloyd LJ. It also conforms with the jurisprudence of
the European Court of Human Rights under article 6 of the Convention - for we
accept without demur that what was engaged by the successive applications for
an adjournment was the defendant's right both at common law and under the ECHR
to a fair trial.
19. But, as Lord Hope went on in his next sentence in Gillies
to point out, the appellate judgment
‘requires a correct application of
the legal test to the decided facts…’
Thus the judgment arrived at at first instance is not eclipsed
or marginalised on appeal. What the appellate court is concerned with is what
was fair in the circumstances identified and evaluated by the judge. In the
present case, this is an important element.
20. We would add that the question whether a procedural decision
was fair does not involve a premise that in any given forensic situation only
one outcome is ever fair. Without reverting to the notion of a broad
discretionary highway one can recognise that there may be more than one
genuinely fair solution to a difficulty. As Lord Widgery CJ indicated in Bullen,
it is where it can say with confidence that the course taken was not fair that
an appellate or reviewing court should intervene. Put another way, the question
is whether the decision was a fair one, not whether it was "the" fair
one.
43.
There were, as we have seen, two interlinking themes to the Claimant’s
application for an adjournment. The first was his desire to secure
representation, having lost his representatives at the last moment. The second
was his health, which he said rendered him unfit to represent himself at the
hearing.
44.
A party to a Tribunal has a right to be represented by counsel or a
solicitor, by a representative of a trade union or an employers’ association,
or by any other person whom he desires to represent him: see section 6(1) of
the Employment Tribunals Act 1996. We agree with the Claimant that
there are usually great advantages to being represented, even in a Tribunal
which is accustomed (as Employment Tribunals are) to hearing litigants in person
in quite complex matters. The more skilled and experienced the representative,
the greater the advantage. Where both sides are represented the overriding
objective of Tribunal procedure, which includes ensuring so far as practical
that the parties are on an equal footing, is usually furthered.
45.
It is, however, not an uncommon problem that one party or the other will
lose representation at relatively short notice before a hearing. There may be
any number of reasons for this, and it will often (though not always) be
impractical for the Tribunal to investigate them. The reasons may include lack
of financial resources, a difference of opinion as to the merits of a case, or
the inability of a voluntary organisation to provide a hoped-for advocate.
Often these problems come into focus shortly before the hearing. The Tribunal
then faces an application to adjourn where it may be impossible to do full
justice to both sides. Either the application will be granted, and the party
who was ready will have to suffer substantial delay, sometimes with no
certainty that the applicant will succeed in obtaining representation at the
end of it. Or the application will be refused, and the party who lost the
services of a representative at short notice will have to carry on. There is
no “one size fits all” approach to deciding what is fair in such circumstances.
46.
The Tribunal dealt with this aspect of the application in paragraph 36
of its reasons, which we have quoted. We see no error of law or approach in
it. We think that, if the Claimant was fit to represent himself, it would
plainly have been just and fair to carry on with the hearing, making allowances
where necessary for the fact that the Claimant was representing himself. The
Claimant was and is a man of conspicuous intellect, holding a responsible
academic post at a university. The remitted issue – even divided into two as
it had been – was relatively short and straightforward. The bundle was
prepared. The case was old, and had been listed for some time. Key witnesses
were ready to give evidence: the accusations against the Respondent’s witnesses
were serious – any allegation of race discrimination is a serious matter. The
Claimant was personally very familiar with the facts and issues. Tribunals are
accustomed to making allowances where necessary for the fact that a litigant is
representing himself.
47.
The key question for the Tribunal was therefore whether the Claimant was
indeed fit to represent himself.
48.
Here the Tribunal was in our judgment entitled to take into account the
absence of medical evidence. In Teinaz Gibson LJ said
“21. A litigant whose presence is needed for the fair trial of a
case, but who is unable to be present through no fault of his own, will usually
have to be granted an adjournment, however inconvenient it may be to the
tribunal or court and to the other parties. That litigant's right to a fair
trial under Article 6 of the European Convention on Human Rights demands
nothing less. But the tribunal or court is entitled to be satisfied that the
inability of the litigant to be present is genuine, and the onus is on the
applicant for an adjournment to prove the need for such an adjournment.
22. If there is some evidence that a litigant is unfit to
attend, in particular if there is evidence that on medical grounds the litigant
has been advised by a qualified person not to attend, but the tribunal or court
has doubts as to whether the evidence is genuine or sufficient, the tribunal or
court has a discretion whether or not to give a direction such as would enable
the doubts to be resolved. Thus, one possibility is to direct that further
evidence be provided promptly. Another is that the party seeking the
adjournment should be invited to authorise the legal representatives for the
other side to have access to the doctor giving the advice in question. The
advocates on both sides can do their part in assisting the tribunal faced with
such a problem to achieve a just result. I do not say that a tribunal or court
necessarily makes any error of law in not taking such steps. All must depend on
the particular circumstances of the case. I make these comments in recognition
of the fact that applications for an adjournment on the basis of a medical
certificate may present difficult problems requiring practical solutions if
justice is to be achieved.”
49.
In Lord Chancellor v Andreou Arden LJ said:
“46. The tribunal in deciding whether to refuse an adjournment
had to balance a number of factors. They included not merely fairness to Mrs
Andreou (of course, an extremely important matter made more so by the
incorporation into our law of the European Convention on Human Rights, having
regard to the terms of Article 6): they had to include fairness to the
respondent. All accusations of racial discrimination are serious. They are
serious for the victim. They are serious for those accused of those
allegations, who must take very seriously what is alleged against them. It is
rightly considered that complaints such as this must be investigated, and
disputes determined, promptly; hence the short limitation period allowed. This
case concerned events which took place very many years ago, well outside the
normal three months limitation period. The tribunal also had to take into
account the fact that other litigants are waiting to have their cases heard. It
is notorious how heavily burdened employment tribunals are these days. Fairness
to other litigants may require that indulgences given to those who have had the
opportunity to justify an adjournment but have not taken that opportunity
adequately are not extended. It was a matter of particular concern that no
indication was given in the evidence of Mrs Andreou either as to when the
medical evidence which she required from the consultant would be available, nor
as to when it might be that this case could come on for trial. Viewing the case
in the round and considering all the circumstances referred to by the tribunal,
I cannot see how it could be said that in refusing the application the tribunal
was perverse or otherwise plainly wrong in refusing a further adjournment.”
50.
In our judgment the Tribunal was entitled to concentrate upon the
absence of medical evidence and proceed with the hearing. It was not bound to
adjourn for medical evidence. If the hearing had a very lengthy listing it
might well have been just and proportionate to adjourn on the first day and see
if evidence could be provided. In this case, however, we do not think that
fairness required the Tribunal to do so. To do so would have meant losing a
substantial proportion of the hearing time. Given the presence of the Claimant
and his witnesses; given that the Claimant was not off work ill; and given the
absence of medical evidence, we consider that it was fair to proceed with the
hearing.
51.
A Tribunal which takes this course must, we think, be open to a change
of mind if evidence later emerges that the Claimant was unfit to represent
himself at the hearing: see, for example, Asim v University Hospital Birmingham NHS Trust [2010] UKEAT/0094/10, BAILII: [2010] UKEAT 0094_10_1706. This may happen during the hearing
or even shortly afterwards, if evidence is put forward (as in Asim)
which could not be obtained at the time.
52.
In this case the Claimant eventually produced and served Dr Ghosh’s
report. This report was prepared on the basis of an interview on 23 December
2008, shortly after 3 days of hearing in that month. Dr Ghosh did not suggest
in this report that the Claimant was unfit to represent himself; there is, we
think, an obvious contrast between this report and the letters which Dr Ghosh
wrote in 2005. Dr Ghosh’s evidence would not require the Tribunal to revisit
its conclusion or provide a basis for adjourning the hearing. As we have said,
there is a dispute as to whether the application to adjourn was renewed on the
basis of Dr Ghosh’s report: but in any event the Tribunal remained entitled to
say that there was no evidence requiring an adjournment.
53.
We turn finally to the Tribunal’s remark that there was a “history” “in
the context of applications for postponements on grounds of ill health being
timed coincidentally with a sudden loss of representation”.
54.
This sentence is unhelpfully loose and vague in expression. In the
first place, the Tribunal did not identify the applications it had in mind. In
the second place, it did not make clear the significance of the history to it.
55.
As to the first, we are entirely satisfied that the Tribunal had in mind
the several applications made at the end of March and in April 2005, which link
the question of representation and the question of health. We do not think the
Tribunal intended to suggest that apart from those applications, all made
within a short time of each other, there was any other application for
adjournment which relied both on lack of representation and ill health. There
was not, and there was no reason for the Tribunal to think that there was. All
other applications for adjournment have been made on grounds of the need to
prepare or be represented.
56.
As to the second, we are entirely satisfied that the Tribunal was not
seeking to criticise the Claimant for the applications in March and April
2005. The Tribunal was well aware of Judge Serota’s judgment on this question,
which vindicated the Claimant’s application in so far as it relied on health
grounds. The earlier applications demonstrated the importance of having and
considering medical evidence in the context of an application of this kind.
For the Claimant, therefore, the current application for an adjournment came
against the experience of the earlier applications: medical evidence was
crucial.
57.
We have carefully reviewed the grounds the Claimant has put before us.
We do not think the Tribunal erred in law when it refused the application for
an adjournment, and we do not think the resulting hearing was unfair. The
appeal will be dismissed.
