S Alexander v St George’s University Hospitals NHS Foundation Trust [2026] EAT 67

[2026] EAT 67Case No EA-2025-000188-RN
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 31 March 2026
Before
THE HONOURABLE MR JUSTICE BOURNE
Between
MS S ALEXANDERAppellantST GEORGE’S UNIVERSITY HOSPITALS NHS FOUNDATION TRUSTRespondent
Appellant neither present nor represented – relying on written submissionsMs H Patterson (instructed by Bevan Brittan LLP) for RespondentHearing Hearing date: 31 March 2026
JUDGMENTSUMMARYPractice and procedure, Unfair Dismissal, Disability DiscriminationThe ET did not err in the exercise of its discretion when refusing an application for postponement of a final hearing on the ground of the illness of the Claimant’s representative.

Introduction

[1]This is an appeal against the decision of the Employment Tribunal sitting in Croydon (EJ Leith, Ms Lloyd-Jones and Mr Dixon) (“The ET”) dismissing the appellant’s complaints of unfair dismissal, direct disability discrimination and discrimination arising from disability.[2]Permission was granted by the President on 2 June 2025 on three grounds, all of which challenge a refusal by the ET on the first day and again on the second day of the final hearing (2 and 3 December 2024) to postpone the hearing because the appellant’s trade union representative was unwell.[3]The appeal, therefore, does not directly concern the merits of the appellant’s claim. However, it is necessary to understand the parameters of that claim and its disposal by the ET.

Factual Background

[4]For present purposes the background facts can be summarised briefly: a) The respondent is an NHS Trust. The appellant worked for the respondent as a receptionist from 2011 onwards. b) If an employee’s attendance at work was unsatisfactory by reason of illness, the respondent’s sickness absence policy applied. It provided for cases to progress through three stages if the employee’s attendance did not improve. At stage 3 there would be a hearing at which an officer could decide to establish a further monitoring period to re-deploy the employee or to dismiss the employee. c) The appellant was often absent from work because of illness. She was monitored under the respondent’s sickness absence policy at various times from 14 May 2012 onwards. In February 2017, her case progressed to stage 3 but no hearing took place. d) In 2018, the appellant was invited to a disciplinary hearing because of persistent lateness and was given a first formal warning. e) The appellant continued to have various evolving health problems. Her case was considered under stage 3 at various times, but in 2020 a decision was taken not to proceed to a hearing and to: “Wipe the slate clean”. f) The health problems and absences continued and the appellant was placed back on stage 1 in May 2021. She was moved to stage 2 in December 2021 and to stage 3 in August 2022. g) At a stage 3 meeting or hearing on 14 December 2022, a Deputy General Manager (“DGM”) found that the appellant had been absent on 894 days between 21 September 2011 and 25 November 2022. There had also been further incidents of lateness amounting to 35 hours of missed working time since 1 April 2022. The DGM noted that further surgery was planned for February 2023 and that the appellant intended to do better after this but she was not convinced that the situation would improve or that the appellant fully appreciated the impact of her absence and lateness on colleagues and patients. The DGM decided to terminate the appellant’s employment with twelve weeks’ notice. h) An internal appeal was submitted out of time and was not progressed.[5]The appellant’s claim was issued on 23 May 2023. Her ET1 form stated that she was represented by Mr J Neckles of her trade union.[6]At a preliminary hearing on 24 November 2023, the issues were set out, case management directions were given and the final hearing was listed for six days starting on 2 December 2024. The ET would describe the appellant’s compliance with the directions as patchy. There was a delay in giving disclosure and providing a schedule of loss which caused an unless order to be threatened and the timetable to be adjusted. She did not provide her witness statement by the deadline and on 22 November 2024, an unless order required her to do so by 27 November 2024, three working days before the hearing. She complied with the unless order.[7]The key issue on this appeal arose on 29 November 2024, the working day before the hearing was due to start. On that date at 10.22, Mr Neckles applied by email for a postponement. His written application stated: a) He was currently not in any state to represent the appellant “due to being seized with” a medical condition, fourth nerve palsy, and he identified the relevant symptoms. b) The appellant also would not be able to attend without her representative because she was “not seized with any legal knowledge or experience in how to litigate/represent a full merits hearing” and if the matter went ahead, she would be “prejudiced for lack of effective representation” contrary to the “equal footing” rule referenced in the overriding objective. c) The respondent had not yet complied with an order to provide disclosure relating to the named comparators. d) The appellant was impecunious and not in a position to engage a legal representative.[8]Mr Neckles enclosed a fit note signed by a doctor. It appears to have been misdated 19 February 2025 but it stated that Mr Neckles had been assessed on 28 November 2024. It also stated that he would not be fit for work from 19 November to 18 December 2024.[9]The respondent objected to the application. The Regional Employment Judge directed that it would be considered by the ET on the first day of the hearing on 2 December. He noted that if a postponement was granted, the next available hearing dates would be in September 2026, i.e. at least 21 months later.[10]At 9.10 on 2 December, Mr Neckles sent an email to the ET. He emphasised the authenticity and relevance of the fit note. He added: “Regarding the timing of the claimant’s postponement application, the claimant’s representative GP Certified condition was improving from the commencement of the condition and had improved enough to represent the claimant’s ET claims but suffered a significant regression in the early hours of the morning of 29 November 2024 which alerted him that he was not in the position to represent the claimant’s ET claims before the Employment Tribunal. It is for that very reason why the said postponement application was made on 29 November 2024 and for no other reason”.[11]In the email, Mr Neckles also reiterated his point about the respondent’s disclosure. As to the appellant’s inability to proceed unrepresented, he essentially repeated the points made in his application.[12]The hearing commencing on 2 December 2024 was conducted by CVP. Neither the appellant nor Mr Neckles initially attended. The ET’s clerk contacted them both. The appellant had been having difficulty connecting. Mr Neckles explained that he would not be attending. The ET heard submissions on the postponement application from the appellant and from the respondent’s counsel and then adjourned to deliberate. When they returned, Mr Neckles had joined the hearing and he asked to make further submissions. The ET heard his submissions and adjourned for further deliberation.[13]Shortly before 1 p.m. on 2 December, the ET gave its decision orally, refusing to postpone the hearing. It indicated that it would spend the rest of that day reading and then hear the appellant’s evidence on 3 December (with cross-examination estimated to last three hours) and that the respondent’s witnesses’ evidence would not start until 4 December, in the afternoon if necessary, thereby giving the appellant extra time to prepare to cross-examine them.[14]At the start of the second day’s hearing on 3 December, Mr Neckles connected via CVP. He had lodged an appeal by the appellant to the EAT against the refusal to postpone the hearing. He now submitted that the ET had no jurisdiction to continue with the hearing.[15]After deliberating, the ET rejected the jurisdiction argument and noted that a pending appeal was simply a relevant factor to consider when deciding whether to continue or stay the proceedings. It had regard to delay and to the further delay that would arise from the appeal. It bore in mind that the factual evidence had not yet been heard. The respondent had provided detailed witness statements but the claimant’s witness statement provided very little “primary evidence relevant to any of the allegations” so that a further delay resulting from a postponement might have had a greater impact on her and on her ability to recall the events. The ET stated that it remained of the view that a postponement was not in the interests of justice.[16]Mr Neckles then left the hearing. The appellant indicated that she could not “defend herself” and could not answer any questions. The ET pointed out that she would always have had to face cross-examination. It also explained that litigants in person frequently represent themselves at the ET without knowledge of the law or previous experience, and it gave her some time to think. After a break, the appellant said that she could not continue and left the hearing.[17]The ET proceeded in the appellant’s absence. Eventually, it dismissed the claim.[18]The ET’s written reasons were sent to the parties on 31 December 2024. Those reasons dealt with the refusal of the postponement and with the dismissal of the substantive claim. Its findings on the substantive claim were: a) At all material times the appellant was disabled(i) because she was fitted with a stoma in March 2020 and(ii) because in May 2019 she was diagnosed with supraventricular tachycardia (“SVT”). b) There was no evidence about the appellant’s named comparators. Their names did not even appear in her witness statement. c) The claim for direct discrimination on the ground of disability failed, in particular because there was no evidence that any non-disabled person would have been treated differently from the appellant in comparable circumstances. d) Some of the appellant’s absences were “something arising in consequence of…disability” within the meaning of section 15 of the Equality Act 2010 and this had a material effect on the respondent’s treatment of her. e) The respondent at all times was pursuing a legitimate aim of ensuring regular attendance to maintain an efficient and reliable service. f) Having regard to the appellant’s level of absence, including absence pre-dating her disability, its effect on the respondent’s operation and the DGM’S reasonable view that the situation would not be remedied after surgery, and the giving of warnings and the taking of medical advice, and consideration of options such as redeployment, the respondent’s decision to dismiss was a proportionate means of pursuing the legitimate aim. Other aspects of its treatment of her were not proved or were not proved to be because of something arising from disability. Accordingly the claim under section 15 failed. g) The reason for dismissal was capability. Procedurally and substantively the dismissal was within the range of reasonable responses open to a reasonable employer. Accordingly the claim for unfair dismissal failed.[19]In respect of the postponement application, the ET directed itself to rule 30A of the ETA Rules of Procedure which requires any postponement application to be presented “as soon as possible after the need for a postponement becomes known”, and which provides that if the application is made less than seven days before the hearing begins, a postponement will be ordered only in “exceptional circumstances”, which may include ill-health. The ET also directed itself to and set out the overriding objective in rule 2.[20]The ET then set out the chronology of the proceedings which I have summarised above. It noted in its email on 2 December 2024, Mr Neckles explained that his condition had regressed in the early hours of 29 November and that he then became aware that he would be unable to represent the claimant. In her submissions, the appellant told the ET that she had anxiety which would prevent her from representing herself. The ET noted that this was not relied on as a disability in the claim and had not been mentioned in the original postponement application or in Mr Neckles’ email. In his further submissions on 2 December, Mr Neckles had explained that he was the only member of staff of his union who could provide advocacy services to members and that the union had no funding for external representation. The ET expressed surprise that those facts had not been mentioned in the original application or the email.[21]The ET expressed concern that the fit note said that Mr Neckles could not work from 19 November, i.e. three days before the unless order for the witness statement and ten days before the postponement application, (2) the original application did not refer to a downturn in his condition on 29 November and (3) he had attended his GP for a fit note the day before the deterioration, which was now given as the reason why he could not represent the appellant, showing at least his prior awareness of a possibility that he would not be able to represent her.[22]The ET considered Mr Neckles’ point about the respondent’s disclosure to be a red herring. If the named comparators had been apt comparators, which the respondent denied, the ET could have drawn an adverse inference from a failure to disclose documents. And there had been no application on the appellant’s behalf for specific disclosure. I agree with the ET about that issue.[23]Having regard to all of the facts, the ET was not satisfied that there were exceptional circumstances within the meaning of rule 30A. It did not accept that the early hours of 29 November was the first time when it would have occurred to Mr Neckles that he might be unable to appear. Ill-health of a representative, starting nearly two weeks before the hearing, was not an exceptional circumstance, particularly without any evidence that steps had been taken to source alternative representation.[24]The ET also held that even if these had amounted to exceptional circumstances, postponement would not have been in accordance with the overriding objective because(1) the ET is “well-versed in supporting litigants in person”,(2) there was sufficient time within the listing to give the appellant additional breaks and time to prepare to question the respondent’s witnesses, and(3) the delay would be such that in a case dating back to 2011, even the most recent allegations would have been nearly four years old by the time of a postponed hearing.

The Grounds of Appeal

[25]The appellant has permission to pursue three grounds:(1) The ET erred in not having regard to the uncontradicted evidence of Mr Neckles’ medical condition.(2) The ET fettered its discretion and disregarded the overriding objective and the need for equality of arms, because the respondent was fully represented whilst the appellant had no competent representation and wished to be represented because she had no relevant experience and her disability conditions would flare up if she had to represent herself.(3) The ET fettered its discretion, disregarded rule 30A which had been satisfied by the appellant, preventing a fair hearing, proceeding without equality of arms and relied on irrelevant considerations. After the filing of the EAT appeal, it also proceeded without jurisdiction.

The Parties’ Submissions

[26]By a curious coincidence, Mr Neckles applied on 12 March 2026, that is, 19 days ago, for a postponement of the hearing before this Tribunal. He stated that he was required to attend a hearing in another jurisdiction overseas, which I take to mean that he had a brief to appear in that jurisdiction. This hearing was a prior engagement which had been fixed by reference to the parties’ availability, so the Registrar quite rightly refused that application. Mr Neckles nevertheless has not attended but has relied on two written skeleton arguments. The appellant did not attend the hearing today.[27]In his written submissions Mr Neckles referred to the right to a fair hearing under Article 6 of the European Convention on Human Rights and to the fundamental requirement of procedural fairness in legal proceedings, as recognised by the Supreme Court in Osborn v Parole Board [2013] UKSC 61.[28]So, he submitted, whilst an ET has a discretion to grant or refuse a postponement, it must give sufficient consideration to fairness, prejudice and the interests of justice. The ET must have regard to the rules of natural justice, i.e. that parties must have the opportunity to present their case and to the principle of equality of arms.[29]Mr Neckles submitted that the ET erred by prioritising procedural efficiency over fairness, giving insufficient consideration to the medical evidence contained in the fit note and to the appellant’s inability to represent herself. She was effectively presented with an impossible choice between proceeding unrepresented and withdrawing from the hearing.[30]The respondent was represented, here and below, by Holly Patterson of counsel. She pointed out that the ET correctly directed itself to rules 30A and 2, and reminded me that it is trite law that a Tribunal has a wide discretion in case management decisions with which this Tribunal will interfere only if its exercise was outside the “generous ambit within which reasonable disagreement is possible”: see Bellenden v Satterthwaite [1948] 1 All ER 343 at 345 per Asquith LJ. That hurdle can be surmounted if, for example, a Tribunal has taken an irrelevant matter into account or has failed to take a relevant matter into account, or has made an error of law or principle or has misunderstood the facts.[31]Ms Patterson submitted in response to ground 1 that the ET did not fail to have proper regard to the fit note. Rather, it considered it but was persuaded not to postpone by the facts on which it commented, and those comments were perfectly justified.[32]In response to ground 2, she submitted that the ET clearly and expressly applied the overriding objective and carried out the necessary exercise of balancing the relevant factors.[33]In response to ground 3, Ms Patterson submitted that the ET considered equality of arms and arrived at the justified answer that the ET is a jurisdiction designed to be user-friendly for litigants in person and that extra time could be given within the listing slot to help the appellant prepare. The appellant has not identified any irrelevant consideration to which regard was had. The filing of an appeal to this Tribunal did not deprive the ET of jurisdiction to continue with the hearing.

The Law

[34]At the time of the hearing (today, see rule 32 of the 2024 rules), rule 30A of the Employment Tribunal Rules of Procedure provided:
“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— (a) all other parties consent to the postponement and— (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective; (b) the application was necessitated by an act or omission of another party or the Tribunal; or (c) there are exceptional circumstances… (4) For the purposes of this rule— (a) references to postponement of a hearing include any adjournment which causes the hearing to be held or continued on a later date; (b) “exceptional circumstances” may include ill health relating to an existing long term health condition or disability.” (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— (a) all other parties consent to the postponement and— (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective; (b) the application was necessitated by an act or omission of another party or the Tribunal; or (c) there are exceptional circumstances… (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective; (b) the application was necessitated by an act or omission of another party or the Tribunal; or (c) there are exceptional circumstances… (a) references to postponement of a hearing include any adjournment which causes the hearing to be held or continued on a later date; (b) “exceptional circumstances” may include ill health relating to an existing long term health condition or disability.”
[35]At the time of the hearing (today, see rule 3 of the 2024 rules), rule 2 provided:
“The overriding objective of these rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable: (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay so far as compatible with proper consideration of the issues; and (e) saving expense.” (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay so far as compatible with proper consideration of the issues; and (e) saving expense.”
[36]As an example of factors which can be considered on an appeal against a refusal of a postponement, Ms Patterson cited Teinaz v London Borough of Wandsworth [2002] EWCA Civ 1040, a case which has some factual similarities and some differences with the present case.[37]Mr Teinaz sought the adjournment of a substantive hearing in the EAT on grounds of his illness on 1 June 2000. The hearing was due to begin on 7 June. The application was largely based on a doctor’s “fit note” which signed him off work for two weeks because of “severe stress” and advised him not to “attend court next week”. On 2 June the ET sent a letter refusing the request, saying that there were “a number of uncertainties” and indicating that the application would have to be dealt with by the full Tribunal on 7 June. On 7 June Mr Teinaz did not attend but a representative attended to make the adjournment application. Refusing the adjournment, the ET noted that there was nothing to confirm that the doctor who signed the fit note knew or had treated Mr Teinaz. It was “doubtful” about his stress condition because he had failed to amplify his application in any way since the refusal on 2 June. The ET’s suspicion was “reinforced” by his having “chosen not to attend” on 7 June. There was no satisfactory explanation for the representative having abandoned preparations for the hearing from 25 May, when he was told that Mr Teinaz had been advised not to attend. The adjournment would cause a delay until “well into 2001”. The ET held that the medical evidence was “utterly inadequate”, and it refused to adjourn despite accepting that the claim “may have merit” but that its chances, absent the adjournment, would be “drastically reduced”. It proceeded to hear and dismiss the claim in the claimant’s absence.[38]The EAT allowed an appeal. It held that the ET had not been justified in concluding that the claimant had “chosen not to attend”, where a doctor’s note had advised him not to attend. That error undermined the decision which was based on balancing all the factors which the ET had thought relevant. The Court of Appeal upheld the EAT’s decision. Peter Gibson LJ, with whom Arden LJ and Buckley J agreed, said at paragraph 20: “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 … 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.’"[39]Peter Gibson LJ added:
“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.”
[40]On the facts of Teinaz, the Court of Appeal concluded that whilst a choice not to attend the Tribunal would be a relevant factor, the finding that such a choice had been made was unfair in light of evidence that the claimant had been medically advised not to attend. The ET had not been in a position to reject the evidence of the fit note.

Discussion

[41]As the judgment in Teinaz recognised, there will be cases where the presence of a party at the hearing is essential to ensure a fair trial and cases where it is not.[42]It seems to me that the same is true of the presence of a party’s representative. It all depends on the type of case and the circumstances considered as a whole. If a case was to be tried on agreed facts and would turn on complex legal argument, then the presence of a representative might be indispensable. In a legally straightforward case turning on an investigation of facts, it might not.[43]Ground 1 is a complaint about the ET’s fact finding.[44]The ET expressed scepticism about the following aspects of the appellant’s case: a) At paragraph 19 it noted that although anxiety was given by the appellant as a reason why she could not represent herself, anxiety was not pleaded as a disability or contained in medical evidence and was not mentioned in Mr Neckles’ initial application or subsequent email. b) It was “surprising” that Mr Neckles did not mention the lack of union funding for alternative representation in the initial application or subsequent email. c) It “would be surprising” if the union could not provide any back-up representation, for example if Mr Neckles was ill or on holiday. d) It was “surprising” that Mr Neckles did not make clear in the initial application that his condition had deteriorated on 29 November. e) It was “surprising” that he attended the doctor for a fit note the day before the deterioration.[45]In addition, the ET at paragraph 26 made a finding that the early hours of 29 November was not the first time that Mr Neckles would have been aware that he would be unable to represent the appellant. And at paragraph 21.2, there appears to be a finding that Mr Neckles’ condition did not in fact take a marked downturn in the early hours of 29 November. Consistently with that, when it came to its conclusion that there were no exceptional circumstances, it referred at paragraph 27 to “the ill-health of a particular representative…starting nearly two weeks before the hearing”.[46]I have some concerns about the ET’s analysis of the facts. It seems to have rejected Mr Neckles’ claim that his condition worsened on 29 November, finding this not to be credible in light of the issue of the fit note one day earlier. That was a somewhat flimsy basis for that finding. However, the ET did not find that Mr Neckles was not unfit to attend the hearing. Rather, it found in effect that the postponement application should have been made some days earlier.[47]However, ground 1 alleges a failure to have regard to the fit note. It seems to me that that complaint is not made out. The ET did have regard to the fit note and it did accept that Mr Neckles was indisposed. I therefore reject ground 1.[48]I would also add that even if I upheld ground 1 and departed from the ET’s conclusion as to exceptional circumstances, the respondent could still rely on the ET’s alternative finding that the overriding objective did not in any event favour a postponement, subject to grounds 2 and 3.[49]As I read grounds 2 and 3, they turn on the contention that the ET’s decision was unlawful because it denied the appellant a fair hearing, in particular because of a lack of equality of arms.[50]There is also the discrete contention that the appeal to this Tribunal deprived the ET of jurisdiction to proceed with the hearing, but I have been shown nothing to support it and it is without merit. It would mean that any party could force the ET to postpone a hearing by asking for a postponement and then appealing against any refusal.[51]As the Court of Appeal said in Teinaz, there are cases in which an adjournment must be granted to ensure fairness, despite causing great inconvenience to the other party and/or to the court or Tribunal. The question is whether this was one of them.[52]The ET’s decision that even if there were exceptional circumstances, postponement was not in accordance with the overriding objective, was based principally on(1) the delay which a postponement would cause, and(2) the ET’s view that the appellant could have a fair hearing despite being without representation. I see no misdirection of law by the ET and no failure to have regard to relevant factors and relevant factors only.[53]It seems to me that delay was an important and undisputed factor. The case was already some years old and went back a long way. A rearranged hearing would be at least 21 months away. That would plainly make it harder for the respondent’s witnesses to give evidence about the justification for their decisions. And, logically, it would also make it harder for the appellant to give her evidence, especially where, as the ET noted, her witness statement lacked detail.[54]Nevertheless, I agree with Mr Neckles that the fundamental question was whether there could be a fair trial. It is not necessary to cite the well-known authorities for that proposition.[55]In that regard, I have concluded that although some Tribunals would probably have granted the postponement because of the difficulty for the appellant of proceeding without the representation which she had been expecting, the case does not fall outside the general ambit within which reasonable disagreement is possible.[56]In my judgment, the underlying claim was neither the simplest nor the most complex of its kind. The facts, though, occupying a lengthy section of the ET’s judgment, were very largely a matter of documentary record. As to the law, although the ET had to set out the statutory basis for the claims, the case really came down to a debate over the fairness and proportionality of the ultimate decision to dismiss after many years of frequent absences from work.[57]It is true that ETs hear from litigants in person every day and make such adjustments as are needed to ensure that their cases receive a fair hearing, though that does not mean that lack of representation cannot make an ET hearing unfair.[58]In my judgment, an important factor was the timetable. It so happened that the listing window of six days was generous. The respondent called three witnesses. What mattered was for the appellant to make known to the ET why she considered the dismissal to be unfair and disproportionate and for those contentions to be properly explored with the respondent’s witnesses.[59]Given the ET’s willingness to accommodate the appellant, and to begin with a reading day followed by a day for the appellant’s evidence (which she would have had to give with or without a representative present), and to have pauses where necessary, I do not consider that the ET was bound to conclude that this would not be a fair hearing.[60]Nor was that conclusion imposed on the ET by the bare contention that anxiety would prevent the appellant from having a fair hearing without representation. There was no medical evidence to support that contention. And, given that the written postponement application was professionally drafted, I consider that the ET was entitled to give weight to the fact that the anxiety factor was not mentioned in it.[61]The ET having found, as it was entitled to find,(1) that the application was not made in a timely fashion and(2) that a fair trial remained possible, I conclude that it was entitled to find that the exceptional circumstances test was not satisfied. However, even if that test was satisfied, the ET was entitled to find that the overriding objective did not require the postponement to be granted.

Conclusion

[62]For these reasons, the appeal is dismissed.