“This lady has a long history of depression. She has been receiving medical treatment through us for the last 13 months due to an exacerbation of her anxiety and depression, predominantly triggered by her recent issues at work. …
“With reference to the capacity of the claimant to progress her case personally, I am not in a position to confidently confirm this will be the case. The extremely protracted nature of this case [reflects], in part, the intense anxiety she has experienced since it started and which has contributed to her limited engagement in the process. There is little evidence to date that the work she has done with [Richmond Wellbeing Service], or the medication she has taken, has equipped her to deal with it any more effectively. The recent recourse to alcohol is likely to reflect further anxious/avoidant behaviour. … Furthermore, having spoken with Ms Mukoro on 24/10 she now feels she
“I wrote a report on 22/10/17 and was due to see Nancy yesterday but she felt unable to attend because of her high anxiety so I saw and spoke with her daughter Romany on her behalf. Romany explained that Nancy is struggling to meet the court imposed deadlines for submission of substantial documentation and asked if I could write to reiterate that her mental health difficulties impact on this and to request leeway in this regard. I understand Nancy is representing herself in proceedings.
“In relation to reasonable adjustments to be made, I would expect this would need to involve Nancy, as she is best equipped to tell you specifically what she needs and what will trigger or alleviate her own symptoms. Romany mentioned that Nancy’s former employer sent significant written data in an electronic format that presented as inaccessible to Nancy. Without a mental disability it is challenging reading significant data on screen. I would say it would be a reasonable adjustment to print such data, if it helps Nancy in the process. From a medical viewpoint, when mental cognition is impaired the thought process is slowed down. A mentally impaired patient needs time to process and deliver what is being asked of them. If enough time is not allocated or something is presented in a format that is challenging, to that patient it may well trigger looped anxiety, making them possibly prone to panic attacks resulting in a lack of focus or feeling overwhelmed at the task at hand. Therefore, aiding disabilities via reasonable adjustments aids and quickens any process.”
“This is for the urgent and immediate attention of EJ Snelson who is due to hear a preliminary hearing scheduled for today at 10 a.m.
“… contacting the Tribunal via telephone and speaking to a female Tribunal clerk, urgently requesting that a message be passed on, making myself available for you and/or Judge Snelson to speak to me directly via telephone, at approx. 9.00 am until my Mother’s emergency appointment at 10.30 am, …”
“Unfortunately, medical evidence was unable to be administered or produced prior to seeing the Dentist for the unforeseen “emergency” medical treatment.”
“(1) The case was called on 10:08 this morning. (2) Counsel attended with Ms Corriero of the Respondents. (3) No one appeared for the Claimant. (4) You were due to be representing the Claimant and your own absence is unexplained. (5) EJ Snelson has put the hearing back to 12.00 today to enable you to attend to seek to make out a good ground for adjourning the matter to a fresh date. (6) At the moment the application to adjourn is unsupported by evidence. (7) The Tribunal will not grant an adjournment on mere assertion. (8) If it is not practicable to produce medical evidence, your own evidence could at least be offered. (9) You must be taken to have first-hand knowledge of your mother’s present condition and any treatment she is undergoing. (10) Such evidence might persuade the judge that it [is] in the interests of justice and in keeping with the overriding objective to grant the application. ((11) It would, of course, be open to the Respondents to test your evidence in cross-examination.)
“Called back. Spoke to same female Clerk. Daughter told Clerk she would be available for Tribunal Clerk/EJ Snelson to call & speak to her by 10.30 am. After she would be in the Dental Surgery with myself. Daughter explained medical condition and said medical evidence was to follow. Clerk assured daughter she would immediately inform Tribunal Clerk. Clerk thanked Daughter for informing Tribunal.”
“On the postponement point, I was persuaded by Mr Grant of counsel ( acting under ELAAS) that arguable questions arose as set out in the amended grounds under this head. I had initially been of the view that, in particular given the history of this matter, this was a permissible exercise of case management discretion on the part of the ET. If, however, the explanation provided for seeking the postponement was accepted (and I note that: (i) the ET did not say that it did not accept this; (ii) some corroboration was subsequently provided from the Appellant's dentist, as was forwarded to the ET with the application for reconsideration), then the points made by Mr Grant seemed to me to have some merit.”
“(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.
“When a party or witness is unable for medical reasons to attend a hearing. All medical certificates and supporting medical evidence should be provided in addition to an explanation of the nature of the health condition concerned. Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease.”
“1. Where the appropriate information has been supplied then the Employment Judge will deal with the matter as soon as applicable. If the information has not been supplied any application may become the subject of further enquiry from the Employment Judge for relevant information which will have the effect of delaying the consideration of the application.
“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 ER 252 and 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 do 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.”
“43. 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 inquiries 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.”
“(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—
“For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”
“It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings[1992] 1 WLR 1196 , especially at 1202E−H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike−out power exists. … Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.”
“50. The point made by Mummery LJ in O’Cathail deserves repetition. Here, when we examine the history, we would emphasise the importance for those who have disabilities that they be given proper respect for their autonomy as human beings. In many cases, if not most, a person suffering from a disability will be the person best able to describe to a court or to others the effects of that disability on them and what might be done in a particular situation to alleviate it. This may not apply, of course, to those who are challenged in such a way that they may lack capacity or perhaps be very close to lacking it.”
“59. Second, we think that a considerable value should be placed upon the integrity and autonomy of the individual. It is precisely that which the extracts from Article 13 andArticle 1 of the Convention emphasise. If a person entitled to make a decision affecting the conduct of their case makes that decision, it is not in general for any court to second-guess their decision and to make it in a manner which patronises that person. As we have said earlier in this Judgment, there may be exceptions to that, though they may be rare. Generally, we would wish to emphasise the very considerable importance of recognising that those who have disabilities are fully entitled to have their voice listened to, whatever it is they may be saying.”
“The Tribunal in deciding whether to refuse an adjournment had to balance a number of factors. They included not merely fairness to Mrs Andreou (of course an extremely important matter made more so by the incorporation into our law of the European Convention on Human Rights , having regard to the terms of Article 6): they had to include fairness to the respondent. All accusations of racial discrimination are serious. They are serious for the victim. They are serious for those accused of those allegations, who must take very seriously what is alleged against them. It is rightly considered that a complaint such as this must be investigated, and disputes determined, promptly; hence the short limitation period allowed. This case concerned events which took place very many years ago, well outside the normal three months limitation period. The Tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened Employment Tribunals are these days.”
“(1) I concluded that the Claimant had failed to make out a good reason to further adjourn or postpone the hearing. (2) She had had the opportunity to seek to obtain supporting medical evidence but none had been supplied. (3) In addition, her daughter, now experienced in representing her interests, had had, but not taken, the opportunity to attend the Tribunal (if only to present and attempt to make good the postponement application) or to respond in any other way to the Tribunal’s email and telephone message. (4) Postponement would result in significant prejudice to the Respondents, leaving them with the burden of facing already stale litigation for a significant further period (the Tribunal would not be able to re-list a preliminary hearing for some months and no final hearing would be possible before summer 2019 at the earliest - well over three years after the earliest matters complained of and more than two-and-a-half years since the last). (5) The union is not large and its membership consists mostly of people on modest incomes. (6) I considered it safe to assume that postponement of the preliminary hearing would result in exposure to costs in terms of money and management time which it could ill-afford. (7) And, perhaps more importantly, three flesh and blood individuals would be put to the stress and anxiety of facing serious allegations of discrimination, stalled and with no progress made, for months to come. (8) Delay is the enemy of justice. (9) It prejudices not only the immediate litigants but also other service users. (10) If any case is postponed or adjourned, the inevitable consequence is that access to justice for those behind them in the (ever-lengthening) queue is also delayed. (11) In all the circumstances, I was quite satisfied that it was in keeping with the overriding application to refuse the application.”
“(1) My conclusion was that this was one of a small class of cases in which the exceptional measure of striking-out was appropriate and in accordance with the overriding objective. (2) I have already referred to the delay which has occurred to date and the fact that, if listed now, a final hearing would not be scheduled to start until more than three years after the earliest of the matters complained of. (3) That by itself is not conclusive but it is a material factor. (4) What seals the matter for me is the medical evidence, which is written by practitioners who know the Claimant and have her interests at heart. (5) That evidence is compelling and persuades me to a high standard that there is no realistic prospect of this matter being brought to an effective final hearing within a reasonable period. (6) It also persuades me that, the longer this litigation continues, the greater becomes the likely damage to the Claimant’s own wellbeing. (7) Of course, the Tribunal has a duty to her to make reasonable adjustments but such adjustments do not include taking steps to prolong the destructive effects of this litigation upon her. (8) On top of these considerations is the self-evident fact that I owe an obligation to do justice by all parties to this dispute. (9) The Respondents, who face serious allegations, are entitled to see an end to their jeopardy. (10) The observations in the Riley case are entirely in point. For all of these reasons, I held that all surviving claims must be struck out.”
“Pursuant to theEmployment Tribunals Rules of Procedure 2013 , r72. The application for reconsideration is refused because the judge is satisfied that, for the reasons given with the judgment, there is no reasonable prospect of the judgment being varied or revoked.”
“The ET’s finding at §28 that the Appellant had failed to make out a good reason to postpone the hearing and its rejection of the application to postpone were unreasonable in that:
“In assenting to what was, in the circumstances, an unopposed application to strike out, the ET acted unreasonably in that:
“Usually the EAT will not consider evidence which was not placed before the Employment Tribunal unless and until an application has first been made to the Employment Tribunal against whose judgment the appeal is brought for that Tribunal to reconsider its judgment. Where such an application has been made, it is likely that unless a judge of the EAT dismisses the appeal as having no reasonable prospect of success the judge will stay (or sist) any further action on that appeal until the result of the reconsideration is known. The Employment Tribunal as the fact-finding body, which has heard relevant witnesses, is the appropriate forum to consider “fresh evidence” and in particular the extent to which (if at all) it would or might have made a difference to its conclusions. When deciding if an Employment Tribunal erred in law when deciding on an application to reconsider an earlier decision, the EAT will have regard to any evidence placed before the Employment Tribunal in relation to the application to reconsider.”
“9.2 Subject to paragraph 9.1, where an application is made by a party to an appeal to put in, at the hearing of the appeal, any document which was not before the Employment Tribunal, and which has not been agreed in writing by the other parties, the application and a copy of the document(s) sought to be admitted should be presented to the EAT with the Notice of Appeal or the Respondent’s Answer, as appropriate. The application and copy should be served on the other parties. The same principle applies to any oral evidence not given at the Employment Tribunal which is sought to be adduced on the appeal. The application to consider Fresh Evidence must explain what that evidence is, and how it came to light. Generally, a witness statement detailing this should be filed with the EAT and served on the other parties when the application is made.