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Avoiding the Pitfalls of Opposing Late Medical Adjournment Applications

Legal Update

Written by Andrew Webster.

It is not uncommon for parties (often- but not always- unrepresented parties) to make late applications for medical adjournments which are unsupported by medical evidence.  In such circumstances, should you:

  1. oppose the application and invite the ET to proceed without the other side; or
  2. consent to the adjournment.

At first blush it is very tempting to take option (a) and certainly mainly (likely most) clients will want you to do so.  However, is that a myopic approach?

I encountered just such an issue in Ibeziako v York Teaching Hospital NHS Trust Foundation Trust UKEAT/0091/19 (unreported).  Mr Ibeziako turned up to a hearing (a costs application that I was instructed by the respondent to make against him) and sought an adjournment on the basis that he was too unwell to participate.  In support of his application he tendered medical evidence to the effect that he had previously suffered from mental ill health but no evidence to demonstrate that he was too ill at the time of the hearing itself to effectively participate.  Mr Ibeziako spoke at some length in support of his application.  In so doing, however, he rather shot himself in the foot as the ET found that he had been able to make what it described as a ‘cogent’ application to adjourn and on that basis it concluded that Mr Ibeziako was able to proceed; the hearing therefore went ahead and ultimately a costs order was made against him.

Mr Ibeziako appealed on the basis that the ET at the very least ought to have granted him a short adjournment to enable him to procure medical evidence as to his fitness to participate in the hearing.  He argued that the ET had failed to follow the guidance in Teinaz v Wandsworth London Borough Council [2002] IRLR 721.

In Teinaz Peter Gibson LJ stated:

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...

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.

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...  

 

Rule 30A of The Employment Tribunals Rules of Procedure materially provides that:

30A Postponements

  1. An application by a party for the postponement of a hearing shall be presented to the Tribunal and communicated to the other parties as soon as possible after the need for a postponement becomes known.
  2. Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where—
    1. all other parties consent to the postponement and—
      1. it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or
      2.  it is otherwise in accordance with the overriding objective;
    2. the application was necessitated by an act or omission of another party or the Tribunal; or
    3. there are exceptional circumstances.

The Presidential Guidance on Adjournments underscores Rule 30A.

During the course of the Ibeziako hearing on 31 March 2021, rather forebodingly from my point of view HHJ Tayler referred the parties to the decision in Mukoro v Independent Workers’ Union of Great Britain UKEAT/0128/19 which had been promulgated the week before.

In Mukoro the claimant had made an application at around 8am on the morning of a hearing for it to be adjourned on the basis that she required emergency dental treatment.  She produced no medical evidence at the time to support her application and she did not attend the hearing to make her application.  The respondent opposed the adjournment application and ultimately the case went ahead without the claimant (after a short delay during which the ET attempted, without success, to obtain further information from the claimant).

In Mukoro, Lavendar J held that the ET’s decision had amounted to a denial of justice and thus an error of law.

Fortunately, HHJ Tayler concluded in Ibeziako that it was distinguishable from Teniaz and Mukoro, largely on the grounds that (a) Mr Ibeziako and actually attended the hearing (albeit contending that he was not fit to participate) and (b) the ET in Ibeziako had heard what it considered to be a cogent application from Mr Ibeziako on the basis of which it had been entitled to conclude that he was fit to participate.

The interesting question (to which the answer will never be known) is whether the ET in Ibeziako would have proceeded if Mr Ibeziako had made his application by telephone/email and not attended the hearing.  Had it done so, on the basis of Mukoro, it seems that there is every chance that it would have erred in law.

Thus, whilst the desire on the part of lawyers and clients to resist late (unsupported) medical adjournment applications is entirely understandable, it is clear that ultimately this might prove to be a short-sighted and costly approach (particularly if it vitiates a multi-day trial).

Further, when faced with such an application it is certainly prudent to refer to the ET to Teinaz so that if the ET does decide to proceed it can at least set out its basis for doing so notwithstanding the Court of Appeal’s ratio in that case, thus providing some form of platform upon which to resist any appeal.

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