Wednesday 5 September 2012

Listing hearings without asking for non-available dates

[Thanks to Fatim Kurji of No 5 Chambers for preparing this case summary]

Where there are other witnesses available, is the tribunal entitled to refuse an application for an adjournment?

Not always, says the EAT in University of East Anglia v Miss E Amaik Wu.

The EAT held that although the determination of whether to grant an adjournment is a matter of case management discretion for the employment tribunal, in this instance the tribunal had taken into account irrelevant matters, and failed to take into account relevant matters, in refusing the request for an adjournment. Accordingly the appeal was allowed.

On the eve of the hearing date for the claim for unfair dismissal and race discrimination, the tribunal adjourned the case for want of a judge. The tribunal sent out new dates without seeking the parties' dates to avoid. One of the Respondent's witnesses was unable to attend the new date and applied for an adjournment, which was refused by the tribunal.

The EAT overturned the refusal on appeal noting that there were many allegations against the witness directly, making her a relevant and important part of the hearing. It did not assist to say that the Respondent could ask for a witness order as the considerations for determining that request were the same as for an adjournment. Further the Claimant had not shown any prejudice. These were irrelevant factors that the tribunal had taken account of. The tribunal had also failed to take into account that it had failed to ask for available dates when relisting the matter. The EAT therefore overturned the tribunal's decision and, for expediency, reheard the application for an adjournment, and granted it.

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