O’Cathail v Transport for London UKEAT/0247/11/MAA

It is common ground that the court and tribunal system should deal with legal disputes in a fair manner, giving equal weights to the need for justice both for the Claimant and the Defendant (or Respondent, as this case was in the Employment Tribunal). Should the court fail to act in a fair manner it may substantially prejudice either party’s right to a fair hearing. The case of O’Cathail v Transport for London is a good example of when case management by the courts can prejudice a party’s position and result in a lack of justice being done – in this case for the Claimant.

Mr. O’Cathail’s (hitherto referred to as “the Claimant”) case regarded a claim for disability discrimination under (as it was then) the Disability Discrimination Act 1995. He had been dismissed in 2009 following a long period of absence from work as a result of depression. It was accepted by both parties that the Claimant was a disabled person under the DDA 1995. The Claimant had submitted an ET1 and his claim had been listed for an 8-day hearing in October 2010. The Claimant had applied prior to this for an adjournment of the Hearing as a result of his mental state. The Employment Tribunal (“ET”) had agreed to this and his claim was relisted to be heard in February 2011. Again, however, the Claimant applied for an adjournment. He had been suffering from a respiratory disease contracted whilst abroad and had medical evidence to substantiate this. However, the ET decided that there would not be a further adjournment to the case and that it was believed that to adjourn the case would case more unfairness than relisting it again. The Hearing therefore went ahead without the Claimant in attendance, although the ET stated that they hoped that the Claimant would be able to attend on the second and third day (even though his ‘sick note’ stated that he should rest for a week).

The Claimant appealed to the Employment Appeal Tribunal (EAT) after the Employment Tribunal rejected his claims. The Employment Appeal found that the refusal of the ET to adjourn the hearing was incorrect as (among other things) the ET’s assertion that they hoped the Claimant could attend at a later date was not based upon the medical evidence, the Claimant would not have been in any event fit to attend the hearing, and the Claimant had been denied the opportunity to give his evidence. This had had a significant impact at the original hearing as the ET had found in the Respondent’s favour in almost all areas of fact – not surprising considering the Respondent was able to give evidence.

This case demonstrates that the ET doesn’t always get procedural matters right. When they don’t (and it does happen, as above) it’s important that the procedural irregularities are highlighted and you appeal any decision which is based on such procedural irregularity.