The show must go on

Author:

The Court of Appeal have overturned the decision of the Employment Appeal Tribunal (EAT) in the case of Transport for London v O'Cathail.

Mr O'Cathail began working for Transport for London in June 2007.  Mr O'Cathail went on sick leave six months later and did not return to work before being dismissed in December 2010.  Mr O'Cathail brought a claim for disability discrimination and a hearing was listed.  Mr O'Cathail made a number of unsuccessful applications for a postponement due to his ill health before the Tribunal finally agreed and listed the case for a hearing on 21 February 2011.  Mr O'Cathail applied again for a postponement but the Tribunal refused and the Hearing went ahead in Mr O'Cathail's absence. 

The Tribunal, in deciding to reject Mr O'Cathail's application, took into account a number of factors, namely:

- the hearing had been delayed previously at Mr O'Cathail's request;

- there would be issues with witness availability if the hearing was postponed again; and

- considerable resources had already been spent on this case and there would be further wasted costs for all parties if the hearing was postponed again.

Importantly, the Tribunal also considered the fact that much of the evidence relied upon by Mr O'Cathail was contained in his lengthy witness statement, against which the Tribunal could assess Transport for London's response without the need for oral submissions from Mr O'Cathail.

The hearing went ahead without Mr O'Cathail and his claim was dismissed. 

Mr O'Cathail appealed to the Employment Appeal Tribunal (EAT) who decided that the Tribunal was wrong when it refused to grant a further postponement to Mr O'Cathail and had deprived him of the right to a fair hearing. 

Transport for London appealed the decision of the EAT to the Court of Appeal.  The Court of Appeal considered the following factors:

- the exceptional level of detail and care in the Tribunal's decision to not allow the postponement;

- the overriding objective that Tribunals are to deal with cases justly and fairly to both parties; and

- the right to a fair trial (Article 6 of the European Convention on Human Rights) does not mean that it will necessarily be unfair to proceed with a hearing in one party's absence. 

The Court of Appeal upheld Transport for London's appeal and confirmed that the EAT had erred in this case in substituting its own decision for that of the Tribunal.

Our view:

Although this sounds like good news, a word of caution is necessary.  Both the Tribunal and the Court of Appeal stressed that this was a very rare situation.  In circumstances where a party is unable to attend for medical reasons, an adjournment will usually be granted, no matter how inconvenient it might be to the other parties involved, including the Tribunal.