Employment law

Tribunal procedures

Teinaz v London Borough of Wandsworth [2002] IRLR 721

An applicant sought an adjournment of a tribunal's hearing of his complaint on the basis of a medical certificate stating that he should not attend as a result of severe stress.

The tribunal chairman refused the application and the hearing went ahead.

In refusing to exercise its discretion to postpone the hearing, the tribunal criticised the adequacy of the medical certificate and expressed some doubt as to whether the employee's condition truly justified his non-attendance, before going on to hear and dismiss his case.

The Employment Appeal Tribunal (EAT) allowed the employee's appeal against the decision to refuse an adjournment.

The Court of Appeal ruled that the EAT was entitled to find that the evidence did not justify the tribunal's conclusions.

Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so amounts to a denial of justice.

To comply with the right to a fair trial under article 6 of the European Convention on Human Rights, a litigant whose presence is necessary 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 to others that may be.

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 an applicant for an adjournment to prove the need for the adjournment.

Applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions.

If the tribunal or court has doubts as to whether the medical evidence supporting an application is genuine or sufficient, it may direct that further evidence be provided promptly, or invite the party seeking the adjournment to authorise the legal representatives for the other side to have access to the doctor giving the advice in question.

Andreo v Lord Chancellor's Department [2002] IRLR 728

Here again, a tribunal rejected an application for an adjournment made on medical grounds.

However, the facts were different from those in Teinaz.

Instead of dismissing the application for an adjournment because there was insufficient medical evidence to support it, the tribunal gave the employee a further limited opportunity of addressing the issues.

The tribunal spelled out that what was required was a medical report stating in detail four matters relating to the nature of the employee's illness and her fitness to attend and give her evidence before the tribunal.

The evidence that she produced just within the deadline did not provide any of the specific information requested and was a totally inadequate compliance with the tribunal's order.

It did not focus on the crucial matter of whether or not she was fit to attend the hearing.

Therefore, the tribunal was entitled, in the Court of Appeal's view, to conclude that the employee had had time to produce the relevant evidence but had failed to do so.

It was also entitled to find that, on the available evidence, an inference could not be drawn that the nature of the illness was serious.

Lord Justice Arden said 'stress and anxiety' are terms 'likely to cover a range of symptoms differing widely in their severity.'

Where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity and so on, or to explain why those details cannot be supplied to the tribunal.

Tran v Greenwich Vietnam Community [2002] IRLR 735

In this case, the Court of Appeal said that a tribunal's extended reasons for its decision told the reader no more than did the initial written decision of how the tribunal concluded that the dismissal was fair.

Although it referred to documents, the tribunal did not identify the principal elements of the evidence which it had heard or made findings thereon.

A decision so short on reasoning did not comply with the obligation to explain how the tribunal had got from its findings of fact to its conclusions.

Such an explanation may be economical, but simply to recite the background and the parties' contentions, and then to announce a conclusion is not enough.

However, in the present case, the inadequacy of the extended reasons was not a point that had been taken on appeal to the EAT.

Since it was not an issue that went to the tribunal's jurisdiction, the point was a new one which could not be entertained by the Court of Appeal.

Market Force (UK) Ltd v Hunt [2002] IRLR 863

An employee was dismissed after pornographic material was found on the hard disk of a computer which he used.

He claimed he had intended to delete the material and had stored it accidentally.

The employers took the view that it was impossible for the material to have been saved by mistake.

On that basis, the employee was summarily dismissed.

A tribunal found that the employer had failed to carry out a proper investigation and, therefore, the dismissal was procedurally unfair.

The tribunal ruled that, had further investigation been carried out, there was a 25% chance that the employee's explanation would have been shown to have been correct and that he would not have been dismissed.

This resulted in a 'Polkey' (see Polkey v Dayton [1988] 1 AC 344) reduction of the compensatory award of 75%.

The employers appealed and the EAT agreed that before concluding that there was a 25% chance that the employee would not have been dismissed, the tribunal should have afforded the employers the opportunity to make submissions upon that matter.

It is an elementary principle that each party has a right to be heard, and this necessarily involves a party (within reason) having the chance to address the tribunal upon the issues before it.

The determination of a 'Polkey' percentage is not so wrapped up with the determination of unfairness as not to require any notification that it is an issue under consideration.

A tribunal may not resolve an issue in the absence of submissions by the parties where that issue is of fundamental importance to the amount of compensation.

Furthermore, it is essential for parties to have at least some understanding of the basis upon which a tribunal has reached a conclusion.

Where, in the absence of submissions as to the percentage figure, a tribunal simply hits upon a figure without expressing any of the factors that have led to it, that decision cannot sufficiently explain the basis upon which it has been reached.

Disability discrimination

Surrey Police v Marshall [2002] IRLR 843

The EAT held that there is nothing in the Court of Appeal's decision in Jones v Post Office [2001] IRLR 384, which bars a tribunal from making findings of fact on some of the medical evidence obtained after the rejection of an application for employment.

In a highly technical area, such as that in issue in this case, expert evidence on both sides, including evidence other than from the decision-maker and obtained after the decision, will often be desirable or even necessary if the decision-maker's credibility and rationality are to be examined.

By Martin Edwards, Mace & Jones, Liverpool