Mon, 17 Sep 2012
By Fatim Kurji
Fatim Kurji considers the exercise of a Tribunal’s discretion when dealing with an application to adjourn.
Deciding an application to adjourn is clearly a matter that falls within the discretion of an Employment Tribunal, and such matters are routinely determined without raising much interest. However, where the Tribunal strays into taking into account irrelevant matters, and failing to take into account relevant matters, the EAT will not be reluctant to intervene.
In the case of University of East Anglia v Miss E Amaik Wu (UKEAT/0361/12/JOJ) the EAT held that although the determination of whether to grant an adjournment was par excellence a matter of case management discretion for the Employment Tribunal, in this instance the Tribunal had exercised its discretion inappropriately, and accordingly an appeal against the decision to refuse an adjournment was allowed.
The Claimant’s (Miss Wu’s) claim for unfair dismissal and race discrimination had been fixed for a hearing between 23rd April 2012 and 1st May 2012. On the eve of the hearing the Tribunal notified that Parties that it was unable to hear the case as no judge was available. On the 1st May 2012 the Tribunal fixed the case for between 28th August 2012 and 5th September 2012. It did so without asking the Parties for dates to avoid. On the 9th May 2012 the Respondent applied for an adjournment on the basis that its most important witness, Mrs Koro, had a longstanding wedding commitment overseas during the new dates. The Claimant was invited to comment on the Respondent’s application, and did so by objecting to the adjournment on four grounds:
(i) The Respondent did not need to call Mrs Koro; there were other witnesses available from the same department
(ii) If the Respondent did wish to call Mrs Koro, they could obtain a witness order
(iii) The Claimant had an unnamed witness coming from abroad and a postponement would “impact on the programme of the witness”
(iv) The disruption would cause prejudice to the Claimant
The Tribunal agreed with the Claimant and refused the request for an adjournment, noting “The hearing must take priority over a family wedding. The Claimant’s objections are well founded and this case is becoming decidedly stale.”
The EAT found that the Claimant’s objections were not well founded. In relation to (i) it noted that although Mrs Koro was one of six witnesses, three of whom worked in the same department, the Claimant had made a number of allegations against Mrs Koro directly, including allegations of harassment. Mrs Koro was therefore necessary for the Respondent to be able to defend those elements of the claim. The EAT also disagreed with the contention that a witness order could be obtained noting that the determination of that issue would stand or fall on the same factors as whether the case should be adjourned: it did not take matters any further. As for (ii) the EAT found this to be vague and did not suggest that a new date could not be found to accommodate the Claimant’s witness. Similarly (iv) did not have any detail to it, and given the short interval between the new date being sent to the Parties (1st May 2012) and the Claimant’s objection to the Respondent’s application (14th May 2012) the Claimant would have to show that something happened in that short period that would cause her witness difficulties in attending a date other than the 28th August 2012. The EAT disagreed that there was any prejudice to the Claimant. It therefore found that the Tribunal had taken account of irrelevant matters in determining the application.
Further, the EAT did not agree that the case had become ‘decidedly stale’, and that if it had this was due to the Tribunal’s failure to hear the claim or to seek dates to avoid prior to relisting it. Nor did the EAT agree that claims must always takes priority over family weddings; in this case no attempt had been made to ascertain whether Mrs Koro could be available for part of the hearing or what other dates might be suitable. By not considering the shortcomings in the listing process, the Tribunal had failed to take into account a relevant feature. The EAT therefore overturned the Tribunal’s decision and, for expediency, reheard the application for an adjournment and granted it accordingly.
This case demonstrates that while Tribunals have a broad discretion when dealing with adjournments as part of their case management powers, they must still exercise that discretion within the twin principles of not taking into account irrelevant matters and always having regard to relevant matters.