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Did an employment tribunal err in refusing a postponement due to Counsel's medical emergency?

Yes, held the EAT in Kahn & Uzayr v BP.

A 12 day hearing was listed to hear a substantial and complex discrimination case in the financial sector. The case had taken a long time to reach hearing and involved 48 witness statements. Five days before the hearing an application was made to postpone on the basis of a medical emergency suffered by Counsel for the Claimants.

The tribunal refused the postponement on the basis that the application gave insufficient grounds for a postponement. The postponement was supported by the Respondent. The Claimants applied for reconsideration which was also refused. They appealed.

The EAT held that the tribunal had made an error of law. Despite having a very broad discretion, the tribunal had failed to consider all relevant factors including:

  1. the practical impossibility of the Claimants finding alternative Counsel at the 11th hour in a case that would take a minimum of two weeks' preparation time;
  2. that the Application did contain a clear statement on the medical position despite there being no medical evidence per se; and
  3. the Presidential Guidance and the overall context of the application.

Much will depend on the context and circumstances of the unavailability arising and cases will not be listed for the convenience of Counsel. However in applying a general blanket approach to this discretionary issue the tribunal had undermined the exercise of the discretion. Appeal upheld. The working pressures of judges do not absolve them of the need to consider all relevant factors.

Thanks to Karen Jackson of didlaw for preparing this case summary.