Background: 

The issue arose from the claimant, who had been a member of the respondent political party, making a claim to the Industrial Tribunal alleging age and political belief discrimination.   The case was rejected by the Tribunal.  This related to the fact that the claimant was not selected as a candidate for election.  There were three grounds on which he sought to appeal: 

Outcome: 

In terms of the refusal to adjourn, the claimant did have the hearing adjourned to October 2022.   At the October 2022 hearing the claimant attended.  The claimant sought another adjournment citing that he was unrepresented, there was complex EU Law involved and he had sought assistance from the Equality Commission.   The reference to the Equality Commission related to contacting them the day before the hearing.  The adjournment was not allowed at this stage.   The test to be applied according to the Court of Appeal was whether the adjournment refusal unfairly deprived the litigant their right to a fair hearing.   It was found that the claimant was unable to show that this test has been met.   This was relating to the lack of arguments as determined by the Court of Appeal as well as the claimant’s wilful refusal to participate in the proceedings. 

The second argument related to bias of the Tribunal President.  The Court of Appeal refused this.  The first ground from the claimant was due to the claimant having retained the President’s services when he was a solicitor and then withdrawing those instructions.  This had no evidential basis.  The second was that the President was hostile to the claimant when he had been before the Tribunal representing others.   This was also without evidential basis.   The third relates to a complaint made against the President – the claimant suggests that it was upheld by a complaints officer.  However, on analysis it was found that actually three years later it had only overcome a preliminary hurdle and any outcome was a mystery.   This had no basis upon the court’s assessment and there was a fundamental misinterpretation of the correspondence by the claimant.  Therefore, this ground was dismissed. 

The third ground was a breach of EU law relating to Article 2 of the Windsor Framework which outlines that there should be no diminution of rights, safeguards or equality of opportunity relating to the withdrawal from the EU.  However, the reliance upon EU law related to those who were in employment or occupation rather than being involved in political posts or political office.  Accordingly, it was held that the claimant had no rights under the provisions pre-EU and as a result Article 2 of the NI Protocol/Windsor Framework does not avail the claimant with rights to take a claim here as there is no diminution of rights when compared pre-withdrawal from the EU and post-withdrawal.  

Practical Guidance for Employers: 

An interesting case largely centring upon more procedural elements of the Tribunal.  The Court of Appeal provides useful guidance when it comes to whether a refusal of adjournment can be challenged in the Court of Appeal or if there is apparent bias relating to a need for the Judge to recuse themselves.  Both of these arguments were rejected but the guidance is very useful for cases that would be closer to the line.  Additionally, the Court of Appeal did examine the arguments vis-à-vis Article 2 of the Windsor Framework but it would be interesting to see this in light of the ‘Safeguarding the Union’ agreement which has stated that the Windsor Framework only relates to Trade.