In U v Butler and Wilson Ltd the EAT has held that an employment tribunal erred by failing to grant a short adjournment of a hearing for the claimant, who suffered from a mental disability and was a litigant in person, to consider how he wished to pursue his case. Furthermore, having informed the claimant of his right to make an application for a review of the decision to strike out his claims, the employment judge should have made it clear that the application did not have to be made immediately and orally but could be made in writing within 14 days of receiving written reasons.
U brought a number of claims before an employment tribunal. The tribunal listed his case for a pre-hearing review and made a number of case management orders with which the parties were required to comply. The hearing was due to commence at 10 am but U did not arrive on time and he had not contacted the employment tribunal to explain that he would be late. The hearing therefore proceeded in his absence. The employment judge decided to strike out U’s claims because he had failed to comply with the case management orders. BW Ltd then proceeded to make a costs application. At that point, U arrived at the hearing. It was common ground that U suffered from a mental condition that constituted a disability and he claimed that he was suffering from a psychotic episode at that time. The employment judge observed that U was displaying symptoms consistent with that assertion. U explained that he did not have any bundles of documents but that his bundle was next door at the printer. He also said that he had a witness statement but he did not provide a copy. The employment judge explained to U that his claims had been struck out but invited him to address her as to whether that decision should be reviewed because it had been made in his absence. The employment judge agreed to conduct a review. U submitted that although he had sought legal advice, the solicitor had not advised him about complying with the case management orders. He said that the stress of attempting to comply with the orders had induced a psychotic episode, which he continued to suffer. The employment judge dismissed U’s review application. She held that, because U had not produced any medical evidence to support his assertions, she had to conclude that he did not have a valid reason for failing to comply with the case management orders. U appealed to the EAT.
The EAT allowed U’s appeal. It held that any employment tribunal acting reasonably in the exercise of its case management powers would have granted U a short adjournment to enable him to recover his lucidity, if possible, and gather together the documentation, which was close by (at the printer next door), in order to present his case. The employment tribunal’s failure to consider granting an adjournment, instead requiring U to press on with his application notwithstanding his ill health and lack of relevant documents, was so obviously wrong that, applying the Wednesbury standard of review, the appeal had to succeed. The question of an adjournment arose by reason of what was presented at the hearing, and the adjournment would have fallen within the time allotted for the hearing. As such, the availability, or otherwise, of a medical report supporting the need for an adjournment was not relevant to the question of whether one should be granted, though such evidence would be relevant to an application to adjourn to a completely different day.
The EAT was also critical that, having alerted U as to his entitlement to apply for a review of the strike-out decision, the employment judge failed to make it clear to U that he was not required to make the application immediately and orally, but that it could be made in writing within 14 days from the date on which the written reasons for the strike-out decision were sent to the parties. This was not a ground upon which U had advanced his appeal but the EAT said that, if it had been, it would have upheld the appeal on this basis as well. It overturned the employment judge’s dismissal of U’s review application and granted him 21 days to resubmit his application for consideration by a different employment judge.