The Claimants brought claims of whistleblowing and were also applying for interim relief. They were represented by Counsel under the pro bono scheme. Unfortunately, the hearing for interim relief was listed for a day which Counsel could not attend due to another court hearing that day. The application for postponement was refused on the basis that this was not a special circumstance for justifying a postponement. The Claimants appealed.

The EAT allowed the appeal. Although there were good reasons for the ET to list interim applications on an urgent basis and to expect the parties to make themselves available for the hearing at short notice - postponements only being granted where there were special circumstances (s128(5) ERA), that did not mean that the Claimants had to demonstrate that the circumstances in question were exceptional and the ET's construction of the statutory provision suggested it had set a higher standard than was in fact required and/or had unduly fettered its discretion.