Miss O Phelan v Richardson Rogers Ltd and Mr Michael Rogers
| Jurisdiction | UK Non-devolved |
| Judge | Judge Auerbach |
| Neutral Citation | UKEAT/0169/19/JOJ |
| Subject Matter | Practice,Procedure - Postponement or stay,Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 12 March 2021 |
Copyright 2021
Appeal Nos. UKEAT/0169/19/JOJ (V)
UKEAT/0170/19/JOJ (V)
EMPLOYMENT APPEAL TRIBUNAL
ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE, LONDON, EC4A 1NL
At the Tribunal
On 4 January 2021
Judgment Handed down on
12 March 2021
Before
HIS HONOUR JUDGE AUERBACH
(SITTING ALONE)
MISS O PHELAN APPELLANT
RICHARDSON ROGERS LIMITED RESPONDENTS
MR MICHAEL ROGERS
Transcript of Proceedings
JUDGMENT
UKEAT/0169/19/JOJ
UKEAT/0170/19/JOJ
APPEARANCES
For the Appellant MR ADAM OHRINGER
(of Counsel)
MS HELOISE RAMAGE-HAYES
(Representative)
Instructed by:
Free Representation Unit
5th Floor Kingsbourne House
229-231 High Holborn
For the Respondents MR PETER LOCKLEY
(of Counsel)
Instructed by:
Keystone Law Ltd
48 Chancery Lane
WC2A 1JF
UKEAT/0169/19/JOJ
UKEAT/0170/19/JOJ
SUMMARY
PRACTICE AND PROCEDURE – postponement
When an appeal concerns a decision of the Tribunal on an application to postpone a hearing
because the applicant is not fit to attend, the Employment Appeal Tribunal may only intervene
on Wednesbury grounds. O’Cathail v Transport for London [2012] ICR 614 remains good
law, and has not been implicitly overruled by R(Osborn) v Parole Board of England and Wales
[2014] AC 1115. The O’Cathail line of authorities co-exists with authorities such as Rackham
v NHS Professionals Limited, UKEAT/0110/15 and Galo v Bombardier Aerospace UK
[2016] IRLR 703, which concern the question of adjustments to secure a fair Hearing, and in
respect of which the appeal Court must decide for itself what fairness requires.
Where an application to postpone a Hearing, the outcome of which may determine the complaint,
is made by an applicant who is unfit to take part, their right to a fair trial is engaged, and proper
weight must be given to the serious implications for them of refusing a postponement. This will
usually outweigh the inconvenience and cost to the other party of granting the postponement:
Teinaz v London Borough of Wandsworth [2002] ICR 1471. But the implications for the other
party’s right to a fair trial, and the wider public interest, of not postponing, must also be weighed
in the balance, and may tip it the other way.
The Tribunal’s assessment of when, realistically, the matter is likely to come to an effective
Hearing if the application is granted, and what the medical evidence indicates about that, will
often be of crucial importance. Andreou v Lord Chancellor’s Dept [2002] IRLR 728 and the
Presidential Guidance on seeking a postponement (2013) considered. The Tribunal may also
properly draw on other relevant evidence and information, including in relation to the course and
conduct of the litigation hitherto, when forming a view on that question.
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