Welcome everyone and thank you for joining us for another case of the week. Last week, we examined a claim for constructive unfair dismissal. For anyone that missed it, you can find that here.

This week, we look at the case of Hall v Transport for London. The Claimant was employed by the Respondent as an Engineer. The Claimant had brought claims of disability discrimination and whistleblowing detriment to an Employment Tribunal on 3 June 2019. He argued that he had been subject to unfavourable conduct stretching as far back as February 2014. While disability status was disputed, this was resolved during a preliminary hearing where the Tribunal found that the Claimant’s depression and anxiety amounted to a disability which afforded protection under the Equality Act 2010.

The issue regarding this case was less to do with the factual situation during his employment and instead related to his conduct during the Tribunal process. A full hearing was scheduled to take place across 6 days, starting on 11 August 2020. On the fifth day of the hearing, the Claimant made an application for the hearing to be adjourned part-heard, which was granted by the Tribunal following the production of medical evidence which stated he was no longer fit to continue. The final days of the hearing were rescheduled for December 2020, which allowed sufficient time for the Claimant’s health to recover, but also attempted to reach a conclusion to the matter within a reasonable timeframe. On 8 November 2020, the Claimant requested a further postponement which included a letter from his doctor stating that he was unfit to participate in the hearing. The Tribunal, while taking evidence from the Respondent as to why it should not be granted, agreed to a further postponement to 1 April 2021. In granting the second postponement, the Tribunal made clear that this would be the final one and no further applications would be granted without exceptional circumstances arising. Owing to a hospitalisation between 15 December 2020 and 11 January 2021, the Claimant sought another extension, which was granted on 12 March. While the Tribunal had provided questions to the Claimant’s GP, considered an application for a litigation friend, and a further postponement as a result of the Claimant’s medical evidence, his application for further time was refused on 30 April 2021.

In determining the application, the Tribunal considered the fact that the Claimant’s son had assisted him in submitting another Tribunal claim in April 2021 and that the Claimant was not prescribed any medication to deal with the symptoms of his disability. The Tribunal also considered a strike out on the grounds presented by the Respondent, that the case was not being actively pursued, but found there was insufficient evidence to conclude this was the case. The hearing was set to take place in the Claimant’s absence but gave directions that if any questions needed to be directed to the Respondent’s witnesses they should be provided in writing, or a representative should attend the hearing. The notes from the hearing, which took place on 14 May 2021, were sent to the Claimant along with a request for his comments. No response was received, and judgment was made in favour of the Respondent.

The Claimant appealed on the basis that his medical condition prevented him from engaging within the timeframes set by the Tribunal. The Employment Appeal Tribunal considered the balance between the Claimant’s medical evidence and his applications for postponement against the Respondent’s need to have the matter concluded in a reasonable timeframe. As some of the allegations of discrimination were now over 7 years old, this would present further difficulty in arguing in favour of the Claimant’s case. The EAT found that the decision not to allow further postponements was correct and in the interests of justice. The appeal was dismissed.

Takeaway Points

An Employment Tribunal, like an employer, has a duty to make reasonable adjustments when dealing with a party with a disability. This can be in the form of additional time to consider questions, the making of written rather than oral submissions and questions, or the appointment of litigation friends to assist the party in understanding and engaging with the proceedings.

Included in these adjustments are the ability for the Tribunal to postpone a hearing to a later date. The rules for which can be found in section 30A of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which provide the following reasons for granting a postponement within 7 days of a hearing:

  1. Where all the other parties agree to the postponement and it is practicable and appropriate for the purposes of giving the parties an opportunity to resolve their disputes by agreement, or it is otherwise in accordance with the overriding objective.
  2. The other party has done, or failed to do something which necessitates the postponement, and
  3. Where there are exceptional circumstances. Exceptional circumstances may also include ill health due to an existing long term condition or disability.

However, while the Tribunal can make reasonable adjustments for a disabled party, the need to balance this against the need of the opposing party must always be considered. In this case, the Tribunal gave substantial additional time to the Claimant, who ultimately failed to engage with the orders and directions he was given.

If you, or someone you know is dealing with a similar issue, please contact us for further assistance.