J Kotecha v Insurety Plc (T/A Capital Health Care) & Ors

Facts

The appellant employee (K) appealed against an employment tribunal's refusal to grant an adjournment of his race discrimination claim against the respondent employer (E).

K had sought an adjournment on the basis that his depression and alcoholism rendered him unable to present his case. K relied on medical evidence including a report from a psychiatrist (P) which had been written almost six years before and which had been edited by K, and evidence from a doctor (X) who admitted that his opinion was based on a 10-minute interview, that he had seen K only once before and that, given his limited knowledge of K's history, his judgment had erred in favour of protecting K's health. The tribunal concluded that, in accordance with the overriding objective under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 reg.3, an adjournment should be refused.

K contended that the tribunal had erred in law in failing to apply the approach adopted in the leading authority of Teinaz v Wandsworth LBC [2002] EWCA Civ 1040, [2002] I.C.R. 1471, which stated that an adjournment should usually be granted where a litigant's presence was necessary for the fair trial of a case but the litigant could not attend through no fault of his own.

Held

(1) Unlike the situation in Teinaz, K had not only attended the hearing but had made submissions, on the basis of which the tribunal had concluded that he had the mental capacity to act in the proceedings, Teinaz distinguished. Accordingly, the tribunal had made a critical finding that K was able to continue and thus, an adjournment was unnecessary. (2) The tribunal's opinion was far more relevant and cogent than the views of X, who had only seen K for a short period and admitted that he knew little about employment tribunal proceedings. Further, as the designated fact finder, the tribunal had been entitled to identify credibility issues relating to the medical evidence and conclude that K had manipulated the medical evidence. (3) The tribunal's decision on an adjournment application had to be regarded with considerable deference by an appellate court, Teinaz applied. The tribunal members were in the best position to decide if a claimant was able to present his case properly, and their conclusion on that issue was determinative.

Appeal dismissed.

Comment

For the purposes of determining an application for an adjournment, an employment tribunal's opinion as to whether a litigant who had attended the hearing and made submissions had the mental capacity to act in the proceedings could be far more relevant and cogent than the views of a medical expert and was to be treated with considerable deference on review by an appellate court.

Read the full transcript here.