What happens if an individual is not well enough to attend Tribunal?  In the case of Mr J Asim v University Hospital Birmingham NHS Foundation Trust he failed to attend Tribunal on the day of the hearing and instead made an application for an adjournment because of lack of representation and on medical grounds.  This was refused and his claim dismissed.

He appealed and produced, at the EAT, a doctor’s letter obtained after the refusal of an adjournment.  This letter contained advice given by the doctor to Mr Asim the day before the hearing stating that, for medical reasons, he was unfit to represent himself.

The EAT applied Teinaz v London Borough of Wandsworth [2002] and determined that if the Tribunal had seen the doctor’s letter it would have granted the adjournment.  In Teinaz, the Court of Appeal held:-

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 to 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.”

In relation to the admission of fresh evidence (the doctor’s note) the EAT had regard for paragraph 8 of the EAT Practice Direction, Ladd v Marshall [1954] and the overriding objective and allowed consideration of the doctor’s note.  The reasons for this were that it was found to be credible, relevant and would probably have had a determinative influence on the Tribunal.

This case has been remitted to Tribunal for full hearing.