Council of City of Newcastle Upon Tyne v Marsden UKEAT/0393/09/CEA

Appeal against decision to revoke an earlier order striking out the claimant’s claims under the Disability Discrimination Act 1995.

The claimant brought a case against his employer for unfair dismissal and disability discrimination. A Pre Hearing Review was held in order to determine the issue of disability, in particular the question of the injury’s continuing effects. Unfortunately, the claimant did not attend the pre-hearing review on the advice of his Counsel, and thus was unable to provide the necessary evidence. Counsel for the claimant did not apply for an adjournment, which the judge said would probably have been granted, and the claim was struck out. This also meant that the claimant’s claim for unfair dismissal was likely to fail, since the unfairness alleged was a failure to make reasonable adjustments. The decision was revoked after a review under Rule 34 of the Employment Tribunal Rules of Procedure and a further hearing was ordered at which the claimant’s disability would be determined.

The EAT, although detecting various errors in the judge’s detailed reasoning, decided that his decision was not wrong. He described as ‘exceptional circumstance’ the related facts that the claimant’s Counsel misled the Tribunal and that by doing so deprived the claimant of an opportunity of an adjournment. Accordingly the original judge’s decision was upheld.

Published: 08/02/2010 15:55

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