The claimant brought a disability discrimination claim against the respondent based upon her eating disorder, agoraphobia, depression and anxiety.  The respondent challenged this and the Employment Judge at the Tribunal directed a joint medical expert report.  Prior to the hearing, the claimant provided additional evidence and the employer conceded that she met the definition of being disabled.   The claimant still wished for the joint expert report to be required as the concession from the respondent was not in relation to all alleged disabilities.  A second Employment Judge refused this application.  Accordingly, the claimant requested a postponement to allow her to obtain her own report and that she needed additional times due to her mental health issues.  The adjournment was then refused by a third employment Judge. On the day of hearing another adjournment application was made and refused by a fourth Employment Judge.  The reason given was that a further medical report would not be of assistance to the court.

The claimant appealed the decision not to adjourn on the day of hearing which was dismissed by the EAT.  She further appealed to the Court of Appeal.  The question of law was whether there were ‘no exceptional circumstances’ as noted by the fourth Employment Judge in their refusal to order the adjournment.  The Court of Appeal looked at two issues; the first was about appeals against case management decisions.   This was based upon the claimant’s argument that the second Judge’s decision to refuse to allow her to have her own medical report was an error in law that should have been ignored on the day of hearing.   The Court of Appeal noted that there was no appeal made against the second order.  Indeed, the claimant could not have their cake and eat it as they had stated that the second Judge should not have interfered with the first Judge’s decision yet were stating that the fourth Judge should have interfered with the second Judge’s decision.   Underhill LJ outlined in his decision that it was unacceptable to make identical applications to separate Judges and that the fourth Judge should not be expected to in essence hear a de facto appeal relating to the other Judge’s interlocutory decisions.  Accordingly, this head of appeal was dismissed.

The second argument was that the claimant stated she did not have enough preparation time.  This was largely on the basis that the respondent’s bundle had arrived late, coupled with her mental health issues.  The Court of Appeal held that the decision to continue with the case by the Employment Judges was not perverse but had actually taken into account the grasp of the facts and issues that the claimant had as well as being able to supply some medical evidence. Accordingly, it was held that she had enough time to prepare and her appeal failed.

Practical Lessons

This case demonstrates how some of the most innocuous preliminary hearings can lead to some of the most substantive Court of Appeal hearings.   Decisions to adjourn can be necessary to ensure that there is a fair hearing but they must also be refused to ensure that the innocent party is not met with great expense or inconvenience.   In this situation, the court backed the decision of multiple Judges in looking at the context as well as the claimant’s understanding of her own case.  Parties must be aware that seeking an adjournment on the day of hearing, especially when another Judge has already refused it previously will not be favourably met.
https://www.bailii.org/ew/cases/EWCA/Civ/2020/638.html