YUNEZ TEINAZ v LONDON BOROUGH OF WANDSWORTH [2002] EWCA Civ 1040

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay Presiding)
[2002] EWCA Civ 1040Case No A1/2002/0471Venue Royal Courts of Justice, Strand, London WC2
Between
YUNEZ TEINAZAppellant/RespondentLONDON BOROUGH OF WANDSWORTHRespondent/Appellant
Before
Lord Justice Peter GibsonLady Justice ArdenMr Justice BuckleyMR J SWIFT (Instructed by Legal Services, London Borough of Wandsworth, Town Hall, Wandsworth High Street, London, SW18 2PU) appeared on behalf of the Appellant.The Respondent did not appear and was unrepresented.Date 16 July 2002
[1]Tuesday, 16th July 2002 JUDGMENT LORD JUSTICE PETER GIBSON: This is an appeal by the London Borough of Wandsworth ("Wandsworth") from the order made by the Employment Appeal Tribunal on 21st February of this year allowing the appeal of Dr Yunez Teinaz from the decision of an Employment Tribunal sitting at London South. By that decision promulgated on 19th June 2000 the Employment Tribunal refused Dr Teinaz's application for an adjournment for his absence on medical grounds and dismissed his claims in his absence. Permission to appeal was refused by the EAT but granted by Pill LJ.[2]Dr Teinaz was employed part-time by Wandsworth as an environmental health officer from September 1995 until 31st March 1999, when he claims he was constructively dismissed. On 8th June 1999 he presented an originating application complaining of racial discrimination and unfair dismissal. Wandsworth in its Notice of Appeal denied the claims, said that Dr Teinaz was largely out of time and asked the Employment Tribunal to determine which of the events which Dr Teinaz had referred to could properly be complained of as actionable complaints. On 19th October 1999 the Employment Tribunal held that all matters of complaint which occurred prior to 19th March 1999 were out of time and fixed the hearing as commencing on 7th June 2000. It gave certain other directions, including the exchange of witness statements not less than two weeks before the hearing. Dr Teinaz instructed a non-practising barrister, Mr Edward, to act for him. On 25th May 2000 Wandsworth's solicitor, Mr Lewis Brooke, suggested to Mr Edward an exchange of witness statements that day. Mr Edward told Mr Lewis Brooke that his client was unwell and had been advised by his doctor to stay away from work and from the Tribunal and that he might need an adjournment of the hearing. Mr Lewis Brooke then contacted Mr Waren, Wandsworth's Head of Environmental Services, who in turn contacted Mr Baker, his counterpart at the London Borough of Waltham Forest where Dr Teinaz then worked. Mr Baker told Mr Waren that Dr Teinaz was not recorded as absent from work.[3]Mr Edward became aware of the contacts between Mr Waren and Mr Baker and on 26th May wrote to Mr Waren asking why Mr Waren needed to contact Mr Baker to ask him whether Dr Teinaz was unwell and to discuss Dr Teinaz's Tribunal action. Mr Lewis Brooke on 30th May replied saying that Mr Waren's purpose had been to enquire whether Mr Baker had information relevant to the Tribunal proceedings, and that Mr Baker confirmed that there was no record of Dr Teinaz being on sick leave. Mr Lewis Brooke said he would oppose any application for an adjournment.[4]On 1st June Mr Edward applied by letter to the Employment Tribunal requesting an adjournment. In his letter Mr Edward said:
"We have been instructed that the Applicant in the forthcoming case is ill and has been advised by his doctor to take time of work including attending any court hearing on ill heath for the next 14 days commencing from 31st May 2000. We understand that the Applicant had been advised about a week ago to take a break from work and all other stress-related tasks as a result of being under severe stress but, had tried to soldier on. This appeared to have now aggravated his illness. For about a week we had put the Respondents on notice of our likely intention to seek an adjournment of this hearing upon a medical advice and certificate. In the circumstances, we therefore [ask you to] grant an adjournment of the hearing that had earlier been scheduled to commence on 7th June 2000. Please find enclosed a medical certificate that has been forwarded to us. We apologised for any inconvenience that this might have caused the Tribunal. We trust that the Tribunal would agree that the Applicant's health takes priority and cannot be put at risk."
[5]The medical certificate was in the form of a manuscript note dated 31st May 2000 on notepaper headed "MUTUELLES EUROPEENNES DE MEDECINE, Docteur GYSELINCK, LONDON". This stated:
"I have advised today Dr Yunez Teinaz to keep away from work for two weeks from today due to severe stress. For the same reason I have also advised Doctor Teinaz not to attend court next week."
[6]It was signed, it would appear, by Dr Gyselinck. That advice was taken by Dr Teinaz, who did not attend work from that day onwards.[7]Wandsworth on 2nd June indicated to the Employment Tribunal that the adjournment would be opposed. Also on 2nd June the Employment Tribunal wrote to Mr Edwards saying:
"2.The Chairman has considered all you say and has balanced that against the desirability of bringing this case to a hearing without delay. Your request for a postponement is refused for the following reason. There are a number of uncertainties about the Applicant's position and difficult issues of justice and principal [sic] for the Tribunal to decide. The application to postpone will therefore have to be dealt with by the full Tribunal on 7th June 2000. The parties should be ready to proceed to call evidence if necessary."
[8]On 5th June Dr Teinaz presented a second originating application alleging victimisation, race discrimination, bullying language, harassment, all based on the telephone contact between Mr Waren and Mr Baker on 25th May 2000. Also on 5th June Mr Edward wrote to Wandsworth indicating that he would apply for an adjournment at the hearing, and he mentioned the new originating application. He suggested that in the circumstances it might be appropriate to delay the exchange of witness statements until 7th June so that a single witness statement would do for both cases, which might be heard together.[9]What happened on 7th June is recounted by the Employment Tribunal in paragraphs 22 and 23 of its Extended Reasons. "22.The Applicant did not attend the hearing and Mr Edward appeared before us alone. The Respondents attended and were ready for the case to proceed. Mr Edward told us that he was instructed solely for the purpose of renewing the application to postpone. His instructions were that the Applicant was unfit to attend the Tribunal, even for the limited purpose of substantiating his grounds for seeking a postponement. The application was rested firmly on the medical note, although Mr Edward did also argue that the hearing should in any event be postponed to enable it to be consolidated with the new complaint of victimisation. (In making and persisting with this subsidiary argument Mr Edward recognised that a likely effect of such consolidation would be a very considerable delay in the disposal of the litigation since the fresh complaint (consisting of an allegation of post-employment victimisation) faced a jurisdictional obstacle which, short of the Court of Appeal, appeared very hard to overcome: see Adekeye v Post Office (No 2) [1997] IRLR 105, CA.) Returning to his primary submission, Mr Edward reminded us that this was not a case with a long history of delays and postponements. He assured us that his client was as anxious as the Respondents to see an end to the litigation as soon as possible. He strongly denied the suggestion made by Mr Lewis Brooke in correspondence that the Applicant's case had not been properly prepared and that this was the true reason for the application to postpone. He told us that his witness statements had been prepared by 25th May. He said that the Applicant's was signed and dated and those of his two supporting witnesses were in draft. When asked to produce them he told us that he had not brought them with him as he was only instructed for the purpose of making the application to postpone. We enquired why, at least after 30th May, he had failed to exchange witness statements. His reply was that in the light of the instructions to investigate a possible claim for victimisation, re-drafting might become necessary (presumably only of the Applicant's statements) to incorporate the new allegation. Finally, Mr Edward referred us to a passage in Harvey on Industrial Relations in Employment Law where some familiar propositions concerning the exercise of our discretion to postpone are set out. 23.Swift opposed the application. He made a series of points in support of his main argument that there was no credible evidence to demonstrate that the Applicant was so unwell as to be unable to attend the Tribunal. He further drew our attention to the prejudice to the Respondents which a postponement was likely to entail."[10]In paragraph 24 the Employment Tribunal said that the application to postpone had brought into play a series of points and considerations. It summarised them and the reasoning which it applied to them as follows:
"(1)A critical issue is whether the medical ground for the postponement is made out. The burden is on the Applicant to demonstrate on adequate evidence a good ground for postponing this hearing. (2)Mr Edward's assertion in the course of argument that he received information indirectly on 22nd May that the Applicant was unwell does not advance the case at all. The Applicant was at work for more than a week after that date. (3)The third hand statement by Mr Edward on 25th May that the Applicant had been advised not to attend work or a Tribunal for two weeks also helps very little. This statement is not substantiated and the doctor concerned is not even identified. The Applicant attended work for the best part of a week thereafter and there is nothing to suggest that he had any difficulty in doing so. If a doctor did give the advice as alleged, the subsequent attendance at work suggests that the advice was based on a misjudgment of the Applicant's condition. If the doctor did not give the advice, the Applicant's credibility is gravely undermined. (4)This brings us to the medical note of 31st May. We observe that there is nothing to confirm that Dr Gyselinck knows the Applicant or has ever treated him before. Mr Edward stated rather tentatively that he believed that the French Medical Centre were the Applicant's general practitioners. We doubt whether Mr Edwards is correct on that point. One would expect a GP to use the standard form sick certificate or to write a full report. Dr Gyselinck did neither. The note relied upon contains no history (not even of recent events such as the alleged consultation of 25th May (or thereabouts) and the advice said to have been given on that occasion), no clear diagnosis (we are not told how, if at all, the Applicant's health is said to have been affected by the stress he allegedly complains of), no suggestion that the Applicant's condition has necessitated any form of treatment, such as the prescription of medication, and no prognosis. (5)It is significant that no suggestion is made to the effect that the Applicant has ever before suffered from stress-related illness or any form of psychological or psychiatric condition. (6)Following the refusal of the postponement application by the Chairman on 2nd June, the Applicant has failed in any way to strengthen or amplify the medical evidence on which he relies. This causes us to doubt whether his condition truly justifies being excused from the Tribunal hearing. (7)The Applicant has chosen not to attend the Tribunal in order to substantiate his contention that he is not fit to attend throughout a full hearing. His absence reinforces our suspicion. (8)Notwithstanding Mr Edward's protestations to the contrary, the correspondence to which we have referred, taken together with Mr Edward's wholly unsatisfactory explanation for why he had simply abandoned preparations for the hearing from about 25th May if not earlier, cause us to share the Respondents' suspicions that there were difficulties in the preparation of the Applicant's case which played a significant part in the decision to apply for a postponement. (9)A postponement would result in prejudice to the Respondents. It is common ground that, if the case were postponed, it could not be heard until well into 2001. The case raises stark issues of fact, many of which depend upon the recollections of witnesses. Memories fade. Delay is itself inimical to justice. (10)Individuals, particularly Mrs Whitbread, face serious allegations which represent a real threat to their standing and reputations. It would be unjust to leave them to face a lengthy wait before the case is determined, unless a compelling reason for doing so were demonstrated. (11)Logistical problems associated with re-listing the case would be considerable and would be likely to entail a significant disruption to the many public services which it is the function of the Respondents to provide and protect. (12)Against these considerations stands the hard fact that the refusal of the postponement would, in all probability, result in the case being determined without the participation of the Applicant. The chances of a successful outcome would thereby be drastically reduced. We proceed on the basis that this claim is made in good faith and may have merit."
[11]The Tribunal then expressed its conclusion on the adjournment application in paragraph 25:
"Balancing all the relevant factors we have reached the clear view that the discretion to postpone which the Applicant invokes should not be exercised. At the heart of this conclusion is our opinion that the medical ground on which the application is based rests on evidence which is utterly inadequate."
[12]The Employment Tribunal gave its decision at about 12.30 p.m. and then adjourned to 2.00 p.m. to enable Mr Edward to contact Dr Teinaz to take instructions. At 2.00 p.m. Mr Edward applied for a review of the decision on adjournment. That was rejected. Mr Edward then withdrew. The Tribunal exercised its discretion under Rule 9(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 to proceed to hear the case, though, as the burden of proof was on Dr Teinaz as applicant, the result in his absence was a foregone conclusion. However, the Tribunal heard evidence from Wandsworth and proceeded to dismiss the case, for which a seven-day hearing had been allowed, in a single day.[13]Mr Edward then applied again on 23rd June for a review, supplying a more detailed letter dated 9th June 2000 from Dr Gyselinck. This said:
"From my notes I can confirm that I saw Dr Teinaz on 25 May 2000 in which I diagnosed that he was suffering from hypertension (involving irregular heartbeat) an oedema (swollen) in both his legs. It was my opinion that this was partly due to severe stress. I advised Dr Teinaz to take 2 weeks off work. I, again saw Dr Teinaz on 31 May 2000. During my session with him, he informed me that he had not taken time off work because he was worried about having a sickness record with his new employer as they were cracking down on sickness absence. I strongly urged Dr Teinaz that he must take at least 2 weeks off work otherwise he is in a serious danger and with a great risk to his health. Dr Teinaz asked if he took the time off work whether he could still attend the court as he had a hearing coming up at an Employment Tribunal. I advised him that when I said he must take time off work, this includes any stress inducing task which therefore excluded attending any court. This formed the basis of my note given to him on the 31st May 2000."
[14]Dr Teinaz appeared at the review hearing and gave evidence of his long-standing medical problems. All his evidence was accepted by the Employment Tribunal, but in its decision promulgated on 21st November 2000 it held that no ground for a review under the 1993 Regulations had been made out.[15]Dr Teinaz on 23rd June 2000 appealed against the decision to refuse an adjournment. The EAT at the preliminary hearing allowed the appeal to go to a full hearing. At the full hearing the EAT allowed the appeal. Mr Justice Lindsay, giving the judgment of the EAT, said that it was troubled by the point taken by the Employment Tribunal at paragraph 247 of its Extended Reasons. He said:
"There does not seem to be any evidence that Dr Teinaz had simply chosen not to attend. Rather the position was that his doctor had advised him not to. It has not been suggested then or since that Dr Gyselinck is not an appropriately qualified medical practitioner. Nor can it be reasonably expected of a person who receives advice on medical grounds not to attend the hearing that he should then attend to prove his state of health. He had been advised by, on the face of things, an appropriately qualified practitioner that he should not attend at the Tribunal."
[16]The judge expressly recognised that the Employment Tribunal had a very broad discretion in relation to questions such as an adjournment, but said that discretions had to be exercised judicially. That required the Tribunal to take into account only matters which should be taken into account.[17]The judge said that paragraph 24(7) was an unjustified matter to have been taken into account in reaching the decision on the adjournment. The EAT recognised that in some cases a factor which is taken into account but which should not have been taken into account is too peripheral a matter to vitiate the conclusion of the tribunal exercising a discretion, because the judge considered whether in this case paragraph 24(7) played no part in the decision or whether the decision would have been exactly the same even if paragraph 24(7) had not been taken into account. But he said that that was not the case here, where the Tribunal had expressly said in paragraph 25 that it had reached its view "balancing all the relevant factors". Accordingly the EAT set aside the decision and the decision on Dr Teinaz's claim and remitted the matter to a fresh tribunal.[18]On this appeal Mr Swift appears for Wandsworth. Dr Teinaz does not appear. He has written to the court, saying that for health reasons he is not here. He is not represented, but he relies on a skeleton argument which has been prepared and sent to the court by Mr Edward.[19]Mr Swift makes the following submissions as to why the EAT erred in law: (1) it sought in practice to re-exercise the discretion which had been exercised by the Employment Tribunal, the EAT substituting its view on the facts as to the relevance of the matters referred to in paragraph 24(7); (2)the matters referred to there were a relevant factor, going to the weight of the evidence which was before the Employment Tribunal in support of the application to adjourn, in particular the unparticularised doctor's note and the absence of further evidence; (3)the EAT subjected the decision of the Employment Tribunal to an unrealistic degree of scrutiny; (4) if the Employment Tribunal took into account a matter which should have been left out of account, it was not a principal conclusion and should not be taken to vitiate the decision.[20]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. 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: see, for example, Bastick v James Lane Ltd [1979] ICR 778 at 782 in the judgment of Arnold J giving the judgment of the EAT (approved as it was in Carter v Credit Change Ltd 1980 1 All E.R 252 at page 257 per Lord Justice Stephenson, with whom Cumming-Bruce and Bridge LJJ agreed). 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."
[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.[23]I turn to Mr Swift's arguments.(1) Mr Swift drew our attention to the judgment of Stephenson LJ in the Carter case and the citations which are contained in that case from earlier cases, such as Jacobs v Norsaltar [1977] ICR 189 and Bastick . This was to emphasise the proposition that under rule 13(7) of the 1993 Regulations the Employment Tribunal has a broad discretion to allow or refuse an adjournment. He rightly submitted that it was not for the EAT to seek to re-exercise the Employment Tribunal's discretion. But that was never in doubt before the EAT. For the reasons already given, it is open to an EAT to find that a matter taken into account by the tribunal is one which should not have been taken into account if there are proper grounds for so holding. The EAT in the present case did not commit any error of law in finding that a matter had been taken into account which should not have been taken into account, provided that its conclusion on paragraph 24(7) that it should not have been taken into account was correct.(2) Mr Swift's second argument goes to the substantial point in this appeal. Was the Employment Tribunal justified on the material before it in treating what it said in paragraph 24(7) as a relevant consideration? Mr Swift submitted that whereas paragraph 24(6) was the Tribunal's finding that Dr Teinaz did not supplement the written evidence of the medical note, paragraph 24(7) was the Tribunal saying that there was no further oral evidence either. I cannot agree. Paragraph 24(6) covered the absence of both written and oral evidence when the Tribunal said "the Applicant has failed in any way to strengthen or amplify the medical evidence".[24]Then Mr Swift points to what the Tribunal has explained at the end of paragraph 24(6), that its suspicion whether the condition of Dr Teinaz truly justified him being excused from the tribunal hearing. Mr Swift submits that paragraph 24(7) says no more than that Dr Teinaz did not attend the tribunal hearing and that his absence reinforced that suspicion. I am not able to agree with that submission either. The Tribunal has used the word "chosen" to emphasise that Dr Teinaz's non-attendance is deliberate. Moreover, the Tribunal appears to have stated the purpose of Dr Teinaz's non-attendance, that is to say "in order to substantiate his contention that he is not fit to attend throughout a full hearing". Mr Swift challenges whether that is the right construction of the first sentence of paragraph 24(7). He says that the words commencing "in order to" merely state the substance of what Dr Teinaz would have said if he attended. But even if that were right, there is still the difficulty that the Tribunal goes on to say "His absence reinforces our suspicion". The logical premise of that must be that not merely did Dr Teinaz not attend but also his non-attendance was the deliberate choice of Dr Teinaz, and that in turn implies that it mattered not that there purported to be a medical note recording advice from a doctor that Dr Teinaz should not attend. How else could the Tribunal's suspicion be reinforced by Dr Teinaz's absence?[25]In my judgment, reading the Extended Reasons as a whole fairly, I find it impossible to escape the conclusion that in paragraph 24(7) the Tribunal arrived at a finding by way of inference from the matters to which they had previously adverted in the earlier subparagraphs of paragraph 24, the characteristic of which is a scepticism with which the Tribunal viewed the evidence and statements made on behalf of Dr Teinaz. If the conclusion in paragraph 24(7) was one which was justified by the evidence before the Employment Tribunal, then it seems to me plain that it was a factor which it was material for the Employment Tribunal to take into account, and I do not see anything in the EAT's judgment to suggest otherwise. If a party chooses deliberately not to attend, then that is clearly most material to the exercise of discretion. But to my mind it is no less clear that if a doctor has advised his patient not to attend the hearing and the patient obeys that advice, it is unfair to describe the patient as choosing not to attend and to treat that as a factor against exercising the discretion to adjourn. Nor can his absence be taken to reinforce the view that he has no genuine reason for not attending. It would be absurd to criticise a litigant for not attending to give evidence of his condition when the doctor has advised him that on medical grounds he should not attend.[26]Mr Swift draws attention, in particular, to paragraph 24(4) and (6) against the background that there was at least some ground for doubting whether Mr Edward was fully prepared for a hearing on 7th June. Paragraph 24(4) contains the Employment Tribunal's comments on the medical note.[27]Before I consider those comments, let me state what appears to me plain on the face of the note, that is to say that a doctor, one from a francophone country and so not an ordinary British doctor, has that day advised Dr Teinaz neither to attend work for two weeks, nor to attend the Tribunal hearing because Dr Teinaz was suffering from severe stress. The Tribunal had no evidence to counter that of the medical note. It was not suggested by Wandsworth that the note was a forgery or that the doctor was not properly qualified, or that Dr Teinaz could not have been suffering, as was stated, from severe stress, or that the doctor could not have given the advice which on the face of the document he gave.[28]The criticisms made by the Tribunal are these. First, the note was neither a standard form sick certificate, such as a GP in this country would give, nor was it a full report. It is true that the note was not on a standard form of sick certificate, but Dr Gyselinck was plainly not an ordinary British GP. Why he should be expected to write a full report, I do not understand. The question which Dr Gyselinck addressed was whether Dr Teinaz should attend work or the tribunal hearing, and his advice on that is stated unequivocally, as is his statement of the reason why Dr Teinaz should stay away. True it is that the note contains no history and no indication of the treatment given or prognosis. The Tribunal says that there was no clear diagnosis. I do not agree. Severe stress was diagnosed. The complaint appears to be that the symptoms have not been given. But whilst I accept that all such details might be helpful to allay doubts, I have to say that the Employment Tribunal's experience of the amplitude of sick certificates supplied to obtain adjournments is decidedly not my own experience, and I have difficulty in seeing how the absence of these details shows that the note was not genuine or that the doctor did not advise Dr Teinaz in the way indicated in the note.[29]The Tribunal has, as it were, contingently criticised whichever doctor it was to whose advice on 25th May Mr Edward is recorded by the Tribunal in paragraph 24(3) as having referred, when the Tribunal said in that paragraph that, if a doctor had advised Dr Teinaz not to attend work and Dr Teinaz had attended work for the best part of a week thereafter, that suggested that the advice was based on a misjudgment of Dr Teinaz's condition. That is, I am afraid, a non sequitur, as can be demonstrated, for example, by the facts as now revealed by Dr Gyselinck's letter of 9th June that Dr Teinaz did not follow that advice because of his worry about having a sickness record with his new employer. Of course the Tribunal cannot be criticised for not knowing what were to be the contents of a letter written after the date of hearing, though I note that Mr Edward did inform the Tribunal that Dr Teinaz could not afford to take the break, which he had been advised on 25th May to take, because of the employer's sick policy: see the Chairman's notes.[30]The Tribunal's point in paragraph 24(6), that Dr Teinaz did not strengthen or amplify the medical evidence after the refusal by the Chairman on 2nd June of the postponement application, is also heavily relied on by Mr Swift. He says that the absence of any further evidence was significant and justified the conclusion reached in paragraph 24(7). I would make two comments on this point. First, whilst the Chairman in the letter of 2nd June uses the expression "the postponement is refused", it is clear that what he was in fact doing was refusing to grant the postponement of the hearing in advance of the imminent full hearing and was deciding that the application for an adjournment was to be dealt with by the full tribunal on 7th June. The paper application would then become an oral application. Many an advocate reasonably believes that he can do better on an oral application than one on paper, as this court sees every week on renewals in open court of applications refused on paper. Second, the Chairman in his letter of 2nd June did not say anything about the inadequacy of the medical note. He referred only to "a number of uncertainties about the applicant's position and difficult issues of justice and principle for the Tribunal to decide". That can hardly be said to put Dr Teinaz on notice that the medical note would be treated as being of little or no weight unless amplified.[31]For my part, I am unable to see how materially this point assisted the Employment Tribunal to conclude that, contrary to the evidence of the medical note, Dr Teinaz's absence was a matter of choice and that it reinforced the Tribunal's suspicions. To my mind it is plain from paragraph 24(7) that the Employment Tribunal did not believe the evidence of the medical note. Like the EAT, I do not think that, on the material before the Tribunal, it was in a position to reach the conclusion which it did in the terms of paragraph 24(7). (3) Mr Swift then says that the EAT subjected the decision of the Employment Tribunal to an unrealistic degree of scrutiny. He referred us to the decision of this court in Retarded Children's Aids Society v Day [1978] ICR 437 at pages 443 to 444 per Lord Denning, Master of the Rolls. In particular, he submitted that the EAT placed undue weight on the use by the Tribunal of the single word "chosen". I do not accept that that criticism is justified. In my judgment it is plain that Mr Swift is wrong to suggest that the Tribunal in paragraph 24(7) was saying no more than that Dr Teinaz did not attend. In context, the Tribunal did mean that it was a deliberate choice taken by Dr Teinaz; hence the conclusion that his absence reinforced the Tribunal's suspicion. This is not the case of an Appeal Tribunal combing through the Tribunal's decision to find a point of law, such as was the case in the Retarded Children's case: see the remarks of Russell LJ at page 444. In my judgment that case is not in point. (4) Mr Swift's fourth point is not one for which, in my judgment, he obtained permission to appeal. It is not in his grounds of appeal, nor is it clearly stated in his skeleton argument. I would therefore not allow it to be taken. But I would add that in any event it seems to me to be of no merit. True it is, as Mr Swift pointed out, that the Tribunal says in paragraph 24(1) that a critical issue is whether the medical ground for the postponement is made out, and that in paragraph 25 it said that at the heart of its conclusion was its opinion that the medical ground rested on evidence which was utterly inadequate. But paragraph 24(7) cannot be said to be peripheral to the decision. It was a factor which the Tribunal says expressly that it weighed in the balance. It is impossible to say that without that factor the decision would necessarily have remained the same.[32]For these reasons, despite Mr Swift's well-sustained arguments, I have reached the clear conclusion that the EAT cannot be faulted for holding that the Tribunal's exercise of discretion was in this case vitiated.[33]For my part, I would dismiss this appeal.

LADY JUSTICE ARDEN: I agree with the judgment of Peter Gibson LJ that for the reasons he gives this appeal should be dismissed. I add some observations because this appeal has raised some points of general interest and importance, in particular regarding the role of an appellate tribunal in relation to the review of the exercise of discretion by an inferior tribunal.

[35]The starting point is that the appellate tribunal does not read the original application with a view to forming, and if necessary substituting, its own judgment as to the way the discretion should be exercised. Nor does the appellate tribunal consider whether the exercise of discretion by the inferior tribunal is one of which it approves. The discretion remains that of the inferior tribunal. The appellate tribunal only intervenes in a limited number of situations. It set aside the exercise of discretion by the inferior tribunal if the exercise of discretion is "outside the generous ambit within which reasonable disagreement is possible": see GvG [1985] 1 WLR 647 , or, as this court put it in Carter v Credit Change Ltd [1981] All.E.R 252 at 258, the tribunal's decision is perverse or such that no reasonable tribunal could have come to. Other situations in which the appellate tribunal can intervene in the exercise of discretion by the inferior tribunal are where the tribunal has made a mistake in law, acted in disregard of principle, misunderstood the facts or failed to exercise the discretion. The other situation in which the appellate tribunal can intervene, and which is the relevant one in this case, is where the inferior tribunal took into account some irrelevant consideration or, alternatively, left out of account some relevant consideration.[36]Two points flow from this last point. First, it is for the appellate tribunal to determine what considerations are relevant to the question at issue. It does not defer to the inferior tribunal in the selection or identification of these considerations. Second, unless permission is given for fresh evidence to be adduced on appeal, the appellate tribunal makes this determination on the factual material before the inferior tribunal. If the appellate tribunal finds that an irrelevant consideration has been taken into account or that a relevant consideration has been left out of account, the appellate tribunal must conclude that the exercise of discretion by the inferior tribunal is invalidated, unless it can be satisfied that the consideration did not play any significant role in the exercise of the discretion and thus constituted a harmless error involving no prejudice to the appellant.[37]It is to be noted that the standard of review as respects the exercise of discretion involves the grant of considerable deference to the inferior tribunal. In particular, where several factors going either way have to be balanced by the inferior tribunal, the appellate tribunal does not interfere with the balancing exercise performed by the inferior tribunal unless its conclusion was clearly wrong.[38]In my judgment paragraph 24(7) of the decision of the Employment Tribunal in this case constituted a consideration which ought not to have been taken into account, because it drew an unjustified conclusion from the evidence before it. The Employment Appeal Tribunal's view that paragraph 24(7) was irrelevant was thus correct. Having identified an irrelevant consideration, the Employment Appeal Tribunal proceeded to determine the appeal in accordance with the principles set out above and its decision discloses no error of law.[39]I agree with Peter Gibson LJ that applications for adjournment may raise difficult problems requiring practical solution. While any tribunal will naturally want to be satisfied as to the basis of any last minute application for an adjournment and will be anxious not to waste costs and scarce tribunal time or to cause inconvenience to the parties and their witnesses, it may be that in future cases like this a tribunal or advocates for either party could suggest the making of further enquiries and a very short adjournment for this purpose. I am not, of course, saying that that course would necessarily have assisted in this case, but it may be helpful to advocates and tribunals to bear this point in mind in a future case.[40]No reference was made in argument to Article 6 of the European Convention on Human Rights, which was incorporated into our domestic law with effect from 2nd October 2000, that is after the decision of the Employment Tribunal in this case. Article 6 guarantees to everyone in the determination of his civil rights and obligations the right to a fair and public hearing within a reasonable time. I do not think that Article 6 added anything to the argument in this case, but it does underscore the need to approach applications to adjourn on the grounds of applicant's health with great care. As the President put it in the Employment Appeal Tribunal in this case:
"If the adjournment was improper then Article 6 would only strengthen the case for the merits decision arrived at in Dr Teinaz's absence being set aside."
[41]Accordingly, I agree that this appeal should be dismissed.[42]MR JUSTICE BUCKLEY: I also agree that this appeal should be dismissed for the reasons given by Peter Gibson LJ. For the avoidance of doubt, I also agree with the remarks added by Arden LJ.

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