The claimant had been dismissed by the respondent following a lengthy period of absence for depression and it was common ground that he was a disabled person under the DDA 1995. These proceedings concerned complaints of bullying and harassment. A hearing was initially listed for October 2010 but the claimant applied successfully for an adjournment as he was unfit to attend because of his mental state. The case was relisted for hearing in February 2011 but the claimant fell ill with a respiratory infection after a trip abroad the week before the new hearing and he applied for a further adjournment, supported by medical evidence. The ET, while not disputing the claimant's illness, decided that "this is a very rare case in which we consider that it is more unfair in general for this matter not to proceed than it would be to adjourn". It added that they intended to proceed to hear evidence on the Wednesday and Thursday and hope that the claimant would be fit to attend by the Wednesday even though the medical evidence suggested a week's rest. The claimant made a further application to adjourn on the Wednesday which was again refused.

In allowing the appeal HHJ Richardson considers the cases of Terluk, Osborn & Clark, Teinaz and Andreou. He concludes that although Terluk and Osborn & Clark did not concern proceedings in the ET, there was nothing to suggest that they were of limited application. He then directs himself that the EAT will not intervene unless it is demonstrated that the tribunal has erred in law in granting or refusing the adjournment. However the effect of Terluk & Osborn & Clark is broadly that

"There are however some decisions to grant (or more usually refuse) an adjournment which imperil the fairness of the proceedings as a whole.  Where this is a ground of appeal, the Appeal Tribunal must look for itself to see whether the effect of the decision has been to deny a fair hearing to the appellant.

In his judgment the decision to refuse to adjourn the EAT was plainly wrong as, among other things, a) there was no medical evidence for the ET's hope that the claimant would be able to attend from the Wednesday; b) the claimant was denied his legitimate expectation to give evidence on oath and to call and question witnesses and c) this was not a case where the claimant would never be fit to attend a hearing.

__________________

Appeal No. UKEAT/0247/11/MAA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 8 August 2011

Judgment handed down on 13 January 2012

Before

HIS HONOUR JUDGE DAVID RICHARDSON, MR A HARRIS, MR J R RIVERS CBE

MR G O'CATHAIL (APPELLANT)

TRANSPORT FOR LONDON (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR G O'CATHAIL (The Appellant in Person)

For the Respondent
MS LUCINDA HARRIS (of Counsel)

Instructed by:
Eversheds LLP
Kett House
Station Road
Cambridge
CB1 2JY

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 by reason of a respiratory infection. The Tribunal refused his application for an adjournment and proceeded to hear the claim without his participation. Held: the Tribunal's refusal of an adjournment was wrong in law. Teinaz v London Borough of Wandsworth [2002] IRLR 721, Andreou v Lord Chancellor's Department [2002] IRLR 728, Terluk v Berezovsky [2010] EWCA Civ 1345 (25 Nov 2010) and Osborn & Booth v Parole Board [2010] EWCA Civ 1409 discussed.

1. This is an appeal by Mr Greg O'Cathail ("the Claimant") against decisions of the Employment Tribunal sitting in London Central dated 21 February 2011 and 23 February 2011, refusing his application to adjourn an 8-day hearing listed to begin on 21 February. The hearing proceeded in his absence; it was over in 2 days; and by a judgment dated 17 March 2011 all his claims were dismissed.

1. The Claimant was employed by Transport for London ("the Respondent") as a permanent employee from 1 June 2007. From 2 January 2008 until his eventual dismissal on 29 December 2010 he was absent on grounds of ill health. It is common ground that the Claimant was at the material time a disabled person for the purposes of the Disability Discrimination Act 1995 by reason of anxiety and depression. He made complaints of bullying and harassment by the Respondent's staff both prior to and after the commencement of his absence.

1. Several sets of proceedings have been issued by the Claimant against the Respondent. The first claim, presented on 28 July 2008, has been heard and determined; the Claimant was partially successful. The second claim, presented in August 2009, is the one with which this appeal is concerned: it relates mainly to events between August 2008 and August 2009. There have been further claims; these were yet to be heard at the time of the decisions which are under appeal.

1. The claim with which we are concerned was originally listed for hearing commencing on 4 October 2010 for 7 days. The Claimant, however, applied for an adjournment principally upon the ground that he was unfit to attend by reason of his mental state. His application was supported by medical evidence. The application was granted. An order was made that the Claimant should serve on the Respondent and the Tribunal by 18 October 2010 a medical report dealing with condition and prognosis and saying when, if ever, he would be fit. This he did. The hearing was re-arranged to commence on 21 February lasting 8 days.

1. The Claimant's application for an adjournment was made by email dated 20 February 2011 – a Sunday – so was effectively received and dealt with on the first day of the hearing.

1. In his application the Claimant said that he had been abroad to Brazil to accompany his wife; that when he returned he began to feel ill; that his GP had given him medication on Friday; that he had collapsed on Saturday and been under observation at Homerton Hospital; that he had been given further medication and instructed to rest for a week; and that he was told to attend his doctor again on the Monday morning. He supported his application with prescriptions issued on the Friday and Saturday, and with the discharge summary from hospital, which confirmed that he was advised to see his GP on the Monday and "rest for a week".

1. At about 10.00 on Monday morning the Claimant faxed a doctor's letter in support. This said:

"I confirm that Mr O'Cathail was seen this morning for a review having been seen on Friday. He continues to suffer from a respiratory infection which is being treated with antibiotics. He is unfit to attend the scheduled tribunal."

1. The Tribunal refused an adjournment. After referring to the medical evidence and making reference to Teinaz v London Borough of Wandsworth [2002] IRLR 721 and Andreou v Lord Chancellor's Department [2002] IRLR 728, the Tribunal set out its conclusions as follows.

"11. It is also important for us to say at this stage that we are not challenging the authenticity of the Claimant's sick note nor are we of the view that the Claimant is not genuinely unwell, however certain powerful factors have come into play which means that this is a very rare case in which we consider that it is more unfair in general for this matter not to proceed than it would be to adjourn. Therefore having considered the circumstances of this case we have decided that in order to give effect to the overriding objective the hearing will proceed subject to some adjustments which we record below.

12. The factors that we have taken into account are as follows:

(1) This case is stale to the point where a longer delay would self-evidently be disadvantage to both parties. The ET1 was issued in August 2009 but events referred to go back to June 2008. A hearing listed for October 2009 was adjourned because the Claimant was unwell. It is obviously the case that memories fade and witnesses on all sides, including the Claimant, would find it increasingly difficult to 'bring off the page' the events complained of if this matter is again adjourned. Specifically, indeed, the Respondent finds itself in a position where two of its witnesses have already become unavailable, one is on long term sick leave and the other is un-contactable. A third witness is planning to go home to Australia very shortly therefore not only are memories inevitably continuing to fade but the Respondent would have a very real problem in relation to its witnesses if there was an adjournment.

(2) In relation to the witnesses, including the Claimant, there is an enormous amount of stress sitting upon them whilst they await the conclusion of this hearing. The Respondent's witnesses have, already, apparently, shown signs of stress and no doubt the Claimant is also suffering; this will be ameliorated to some extent by achieving an end to this matter. Specifically, we understand that the progress of the Claimant's third and fourth claims in this Tribunal has been halted whilst the Claimant concentrates on preparing for this hearing. Case management preparation for the third case awaits the outcome of this hearing and the Claimant has asked that his appeal on his dismissal (the subject of the fourth claim) be put on hold while he concentrates on preparing for this hearing. Therefore not only is general stress a factor which points in the direction of proceeding, there is a specific 'log jam' which will persist until this matter is disposed of.

(3) Turning to the overriding objective we note that when dealing with the case justly we ought to consider the issue of saving expense. If this matter is adjourned today the Respondent, which has already had to deal with the expense of two Case Management Discussions and an adjourned hearing would have yet more substantial expense.

(4) Whilst obviously the issues which the Claimant is complaining of are important to him the overriding objective says that we must deal with matters in a way that is proportionate. The matters at issue here do not include the loss of the Claimant's job and therefore are of relatively low value to the Claimant. In addition, the Respondent has admitted liability for one element of the claim (although there is an issue in relation to the jurisdiction bearing in mind that the claim may be out of time), that is the fact that the Claimant was not allowed to have his wife accompanying him to an internal hearing. Therefore in our judgment the overriding objective does direct us towards the conclusion that it is proportionate in this case for the hearing to proceed.

(5) In relation to the question of expense it is also worth noting that a considerable amount of Tribunal resource has been directed towards this claim. As well as the two Case Management Discussions and the fact that the hearing listed for October did not proceed, a considerable amount of case management time has been dedicated to this issue and it is very much in the interest of the Tribunal that this matter is now brought to a close.

(6) In addition, and bearing in mind the need to deal expeditiously as well as fairly, and as Lord Peter Gibson commented, there are a number of other claimants in the system who are waiting for their cases to be dealt with and they are in a traffic jam behind this case. We consider that it is in the interests of justice for this case therefore to move along.

(7) Finally we note that there are a number of issues in this case which relate to jurisdiction, such as estoppel and the question of whether or not the Claimant raised a grievance in relation to matters to which the old Dispute Resolution Regulations applied. These arguments lend themselves to be determined in the absence of the Claimant if necessary. However, the Tribunal's preference is that the Claimant does attend the hearing and has set as a timetable below which hopefully will enable the Claimant to attend.

13. The Tribunal wishes to emphasise at this point that in pursuance of the overriding objective, whilst the application to adjourn has been refused, it does not plan to dismiss the claim without hearing evidence. In order to give effect to the overriding objective the Tribunal will test out the Respondent's evidence in the light of the written evidence of the Claimant who has prepared a full 18 page statement."

1. While the Tribunal said that it accepted the medical evidence (which, it will be recalled, said that the Claimant was not fit to attend the Tribunal and that he should rest for a week), it nevertheless hoped that the Claimant would be fit to attend by the Wednesday. The Tribunal said that it would not sit on the Tuesday and would sit only on Wednesday and Thursday before breaking until the Monday, by which time it said that the Claimant would be "fully rested".

1. The Claimant applied again for an adjournment. He said he had been back to hospital; he had a mosquito bite and there was some concern that he might have a tropical illness. He supported his application with a statement from his GP which said that the Claimant had again been assessed on 23 February, that he was unfit to attend work or attend a Tribunal and that this would be the case for 2 weeks.

1. The Tribunal refused this application. There are no written reasons as such; but at the beginning of the reasons given for its eventual judgment the Tribunal said:

"...since the Tribunal's decision not to adjourn was not primarily based on the nature of the illness the further applications to adjourn were refused..."

1. It appears that the hearing started on 23 February and concluded on 24 February. The Tribunal said the following:

"6. Because the Claimant did not unfortunately attend the hearing the Tribunal has been mindful of its duties under the overriding objective and powers to make enquiries etc under Rule 14(3). It has been careful to examine the Claimant's case and test out the Respondent's in the light of what the Claimant has said in his extensive ET1 and subsequent written submissions.

7. The Tribunal read all of the relevant documents. It read statements of the Claimant and Ms De Souza and, for the Respondent, of Tammy Edgehill, Sonya Bend, Joan Easton and Edward Batchelor. In addition the Tribunal asked the Respondent's witnesses questions when they gave evidence under oath. The Tribunal is therefore content that it has taken all possible steps to test out the Claimant's case and the Respondent's defence.

8. In fact the majority of the Claimant's case relied on the interpretation of documents rather than upon oral evidence so this case was particularly suited to a hearing at which the Claimant was unfortunately not present. The vast majority of the allegations of harassment were said to be substantiated by documents in the bundle so the Tribunal was able to examine them in order to decide whether they did indeed support them. We found that in general it was not necessary to hear evidence from the Respondent's witnesses as in the main the documents spoke for themselves."

1. It is not altogether easy to reconcile paragraph 7 (which suggests that the Tribunal questioned witnesses about the Claimant's case) with paragraph 8 (which suggests that "in general it was not necessary to hear evidence from the Respondent's witnesses").

1. The Tribunal found against the Claimant. Where there were issues of fact the Tribunal decided them in favour of the Respondent. Where the Respondent gave explanations the Tribunal accepted them. There was one claim – a claim of failure to make reasonable adjustments – which the Respondent admitted in principle, subject to a time point – the Tribunal found the claim to be out of time and declined to extend time.

1. The Claimant submitted that the Tribunal's decision to refuse an adjournment was unfair. He argued that the Tribunal's refusal of his application for an adjournment breached his right to a fair and public hearing by an independent and impartial tribunal established by law, contrary to Article 6 of the European Convention on Human Rights, applied in the United Kingdom by the Human Rights Act 1998. Since he was representing himself, the Tribunal's refusal of an adjournment deprived him of any opportunity to question witnesses, give evidence on oath in support of his case, call his witness (his wife) and make submissions.

1. He referred us to leading cases in the Court of Appeal discussing the grant or refusal of adjournments on the grounds of ill health: Teinaz v London Borough of Wandsworth [2002] ICR 1471 and Andreou v Lord Chancellor's Department [2002] IRLR 721. He submitted that the guidance of the Court of Appeal in these cases was supportive of his case; and that the Tribunal had misapplied it. He also referred to and relied on [Chang Tave v Haydon School and anr]() [2010] UKEAT/0153/10 as illustrative of the correct approach. The Claimant also submitted that the Tribunal was required in law to grant an adjournment on the grounds that it was a reasonable adjustment required by his disability.

1. 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 might be thought to 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.

1. On behalf of the Respondent Ms Harris submitted that the Tribunal had not erred in law. She submitted further that the Tribunal had a broad discretion whether to grant an adjournment, with which the Appeal Tribunal ought to interfere only if the Tribunal had misdirected itself in exercising its discretion or reached a conclusion outside the broad band of judicial discretion. She submitted that this approach is established by Teinaz (see Peter Gibson LJ at para 20, Arden LJ at para 35-36) and Andreou (see Peter Gibson LJ at paras 35, 45-48, Arden LJ at paras 51,53) and by the earlier decision of the Court of Appeal in Carter v Credit Change Ltd **[1979] ICR 908 at 918-919.

1. Ms Harris submitted that Terluk and Osborn & Booth, if they laid down any different approach, could not be reconciled with Teinaz and Andreou; **she submitted that these were authorities directly in point, especially since they were decided in the context of employment tribunal procedure; and laid down a test applicable to a body such as the Employment Appeal Tribunal, which hears appeals only on questions of law.

1. Ms Harris further submitted that the Tribunal's decision was justified on the particular facts of this case. The Claimant's case was set out in his written evidence which the Tribunal was able to consider and take at face value. On the particular facts of this case the opportunity to question witnesses and make submissions would have made no conceivable difference to the outcome. The Tribunal, she submitted, applied correct principles and had regard to the overriding objective applicable to employment tribunals.

1. Ms Harris also made an application to adduce fresh evidence. She said that the Claimant had been able to lodge an Appellant's Notice (relating to an earlier decision of the Appeal Tribunal) to the Court of Appeal on 22 February; and this showed he was sufficiently well to attend the hearing. She took us to the Appellant's Notice, which is for the most part a tick-box exercise, with a paragraph of explanation to the effect that he had not yet received a transcript of the reasons given for the decision in question. The Claimant lodged it so as to comply with a time limit – 21 days from the decision which he was appealing, dated 2 February 2011.

1. There is no substance in the Respondent's application to adduce fresh evidence. The medical evidence which the Claimant produced, which we have already summarised, dealt specifically with the Claimant's fitness to attend the tribunal hearing. The fact that the Claimant could lodge an Appellant's Notice of the type which we have described in order to protect his position casts no doubt upon the conclusion that he was unfit to attend and participate in a full tribunal hearing listed for 7 days.

1. We turn therefore to the main question on appeal – whether, given the medical evidence which he had forwarded, the Tribunal erred in law in refusing the Claimant's application for an adjournment.

1. In Terluk the Court of Appeal was concerned with the refusal of a judge to adjourn a civil trial in order to give a party further opportunity to obtain legal representation. 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."

1. In Osborn & Clark the Court of Appeal was concerned with the fairness of decisions of the Parole Board to refuse oral hearings to serving prisoners. The approach of Sedley LJ in Terluk was followed and approved: see paras 39-42 (Carnwath LJ), para 53 (Moses LJ) and paras 57-59 (Sedley LJ).

1. These decisions were not concerned with proceedings before employment tribunals. There is, however, nothing in the judgments of the Court of Appeal which would suggest that they were of limited application.

1. Against this background, we turn to the decisions of the Court of Appeal in Teinaz and Andreou which, as Ms Harris said, were specifically concerned with such proceedings.

1. In Teinaz the employment tribunal had refused an adjournment to a claimant notwithstanding that he had been specifically advised by his doctor not to attend the tribunal hearing by reason of stress-related illness. At the time when the Tribunal took its decision article 6 of the European Convention had not been incorporated in English domestic law. The Court of Appeal held that the Tribunal had erred in law in refusing an adjournment. Peter Gibson LJ said:

"20. Before I consider these points in turn, I would make some general observations on adjournments. Every tribunal or court has a discretion to grant an adjournment, and the exercise of such a discretion, going as it does to the management of a case, is one with which an appellate body is slow to interfere and can only interfere on limited grounds, as has repeatedly been recognised. But one recognised ground for interference is where the tribunal or court exercising the discretion takes into account some matter which it ought not to have taken into account: see, for example, Bastick v James Lane Ltd [1979] ICR 778 at 782 in the judgment of Arnold J giving the judgment of the EAT (approved as it was in Carter v Credit Change Ltd 1980 1 All E.R 252 at page 257 per Lord Justice Stephenson, with whom Cumming-Bruce and Bridge LJJ agreed). The appellate body, in concluding whether the exercise of discretion is thus vitiated, inevitably has to make a judgment on whether that matter should have been taken into account. That is not to usurp the function of the lower tribunal or court: that is a necessary part of the function of the reviewing body. Were it otherwise, no appellate body could find that a discretion was wrongly exercised through the tribunal or court taking into account a consideration which it should not have taken into account or, by the like token, through failing to take into account a matter which it should have taken into account. Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice. Where the consequences of the refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment. As was said by Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at page 653 on adjournments in ordinary civil actions:

'I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.'

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."

The judgment of Arden LJ was to similar effect: see paragraphs 35-40.

1. In Andreou the circumstances were rather different. The claimant applied for an adjournment upon inadequate medical evidence. The tribunal adjourned the case for a week and gave a careful direction as to the medical evidence which should be provided. Although some further medical evidence was lodged it did not comply with the tribunal's direction. The Tribunal refused a further adjournment; and the Court of Appeal upheld its decision.

1. Peter Gibson LJ said (in a passage which the Tribunal in this case quoted):

"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."

1. In our judgment the starting point must be that the law requires a fair hearing to be afforded to parties where (as in tribunal proceedings) their civil rights are determined. This requirement flows from the common law, is reinforced by article 6 of the European Convention, and is a minimum requirement. Whether a tribunal has met this fundamental minimum requirement is a question of law.

1. Decisions whether to grant or refuse adjournments arise in a variety of contexts. Most such decisions will not imperil the fairness of the proceedings as a whole.

1. Sometimes, as in Carter v Credit Change Ltd, the question is essentially about the order in which proceedings will take place. The postponement or advancement of one set of proceedings over another will not usually imperil the fairness of either set of proceedings. Even where the decision is to grant or refuse an adjournment of a hearing at relatively short notice, it will not necessarily imperil the fairness of the hearing. Parties who engage in litigation cannot expect adjournments except for pressing reasons; and hearing are capable of accommodating many forms of disadvantage, real or perceived, without being unfair.

1. In such cases, the Appeal Tribunal, which has jurisdiction only in respect of questions of law, will not intervene unless it is demonstrated that the tribunal has erred in law in granting or refusing the adjournment. The principles are well known. It must be shown that the tribunal acted upon wrong legal principles; or left out of account that which it was essential in law to take into account; or relied upon that which was irrelevant in law; or reached a decision outside the ambit within which reasonable disagreement is possible.

1. There are however some decisions to grant (or more usually refuse) an adjournment which imperil the fairness of the proceedings as a whole. Where this is a ground of appeal, the Appeal Tribunal must look for itself to see whether the effect of the decision has been to deny a fair hearing to the appellant.

1. This, it seems to us, is the effect of Terluk and Osborn & Clark. We think that Peter Gibson LJ, in paragraph 21 of Teinaz, acted upon the same principle. Although, in both Teinaz and Andreou there is language suggestive of a broad discretionary test we think this is implicitly subject to the fundamental principle which we have identified.

1. We emphasise that, as Sedley LJ said in Terluk, there may be more than one fair solution to a difficulty. The question is whether the decision is a fair solution, not whether it is the fair solution. Teinaz and Andreou continue to provide valuable guidance as to what is fair. Thus Teinaz contains guidance to tribunals as to the manner in which such disputes may be addressed by giving directions for further evidence; and Andreou is an example of a case where it was fair for the tribunal to proceed, when it had not received evidence for which it had given directions.

1. In this case the Tribunal did not challenge or question (at least overtly) the medical evidence it received. We think that, in the absence of any further enquiry of the kind contemplated in Teinaz, the Tribunal in this case was bound to proceed upon the medical evidence which it received. This medical evidence was to the effect that the Claimant was suffering from a respiratory infection for which he was being treated by antibiotics; that he required rest; and that he was not fit to attend the Tribunal.

1. This medical evidence does not suggest that the Claimant's ill health was in any way related to the depression and anxiety from which he suffered. It was the kind of moderately severe respiratory infection from which most people will suffer on one or more occasions in their lives. It did not in itself render the Claimant a disabled person for the purposes of the Disability Discrimination Act 1995. It could have happened to anyone, whether or not they had the Claimant's disability. We do not think the Tribunal's decision can be criticised on grounds relating to disability discrimination.

1. In our judgment, however, the Tribunal's decisions on 21 and 23 February were plainly wrong; and they deprived the Claimant of a fair hearing.

1. On 21 February the Tribunal had before it evidence from the Claimant's GP that he was unfit by reason of his respiratory infection to attend the hearing; and evidence in the hospital discharge summary that he had been advised to rest for a week. The Tribunal, without questioning the medical evidence or seeking any further medical evidence, adjourned the hearing for just 2 days. There was no basis in the medical evidence for the Tribunal's hope, expressed in paragraph 13(7) of its reasons, that its timetable would enable the Claimant to attend.

1. On 23 February the Tribunal had before it further medical evidence stating in plain terms that the Claimant was unfit to attend during the period allotted for the Tribunal hearing. The Tribunal nevertheless proceeded with the hearing.

1. The practical consequence of these decisions was to deny the Claimant any opportunity to participate in the hearing. A party to tribunal proceedings has a legitimate expectation of giving evidence on oath, calling witnesses, questioning witnesses and addressing the tribunal: see rule 27(2) of the Employment Tribunal Rules 2004. These are normal incidents of a fair hearing. But for his illness the Claimant would have been permitted to participate in the hearing in these ways. It was in our judgment unfair to refuse an adjournment, thereby effectively depriving the Claimant of any opportunity to participate in the hearing.

1. There are cases where medical evidence indicates that a party to tribunal proceedings, or an important witness, may never be fit to participate – or participate to a significant extent – in a hearing. Such cases present great difficulty for tribunals; they may require considerable adjustments to be made if proceedings are to be disposed of in a way which is fair to both sides and which avoids undue delay. This, however, was not such a case. The medical evidence indicated that the Claimant was suffering from a respiratory infection serious enough to require antibiotics but likely to be limited in duration.

1. The Tribunal set out, in paragraph 12 of its reasons, the factors which evidently led it to conclude that it was fair to proceed without giving the Claimant the opportunity to participate in the hearing. These would be matters of great weight if the Claimant sought an adjournment in circumstances where he was medically fit to attend; but we do not think they justify the Tribunal in proceeding with the hearing when he was unfit to do so. The Tribunal evidently thought that the case was such that the evidence of the Respondent's witnesses ought to be tested (see paragraph 13); but its order denied the Claimant any opportunity to do so.

1. The Tribunal noted that in one respect the Respondent admitted liability subject to a contention that the claim was out of time (see paragraph 12(4)); but even on this question the Tribunal's decision made no provision for the Claimant to give evidence on oath or make submissions.

1. Even if the Tribunal had been justified in proceeding to hear the evidence of witnesses, we do not see why the application to adjourn should have been refused altogether. The hearing of evidence was complete within 2 days. We do not see why the case could not then have been adjourned to give the Claimant an opportunity to hear and answer submissions made on the Respondent's behalf.

1. For these reasons we conclude that the Tribunal ought not to have proceeded with the hearing. The application to adjourn should have been granted; the Tribunal's judgment dated 17 March 2011 will accordingly be set aside; and the matter remitted for hearing by a freshly constituted tribunal. We think a case management discussion should be heard to determine whether all outstanding proceedings should be considered together. On the face of it they are closely related.

1. We regret the delay in handing down this judgment: the reason has been explained to the parties.