TO POSTPONE OR NOT TO POSTPONE
In Kaler v Insights ESC Ltd [2024] EAT 195 the EAT held that an employment tribunal was entitled to refuse a request from an autistic litigant in person for the hearing to be postponed, even though later medical evidence indicated that she’d had a panic attack caused by the pressure of the hearing and her autism and would need two weeks to recover.
The case concerned a teacher who had been summarily dismissed in January 2018 by the respondent, a school for children with social, behavioural, emotional and mental health needs. She was dismissed for sending numerous “abusive, threatening and harassing” emails – some were sent to all staff – and sexually inappropriate texts to a colleague. She did not have sufficient service to claim unfair dismissal but alleged that her dismissal was discrimination arising from her Autistic Spectrum Disorder (ASD). The Tribunal accepted that the ASD was a disability and listed a merits hearing to take place between Wednesday 2nd and Thursday 10th February 2022.
It’s normal in discrimination cases for the claimant to go first as the burden of proof is on them, but on Day 1 of the hearing the claimant asked if she could give evidence last. The request was refused by the tribunal, having found nothing in the available medical reports to suggest that the usual order of evidence would be more stressful for the claimant. She went ahead and concluded her evidence within 3 days.
“It goes without saying that any postponement request or other application for variation of established tribunal procedure on grounds of witness ill health, whether by claimant or respondent, ought to be supported by robust medical evidence and made in good time, but, even then, there is no guarantee that an application will be granted.”
The hearing straddled a weekend, and, over the weekend, the claimant requested a postponement of the remainder of the hearing on the basis that she was too unwell to continue. The request was initially refused, but the hearing was adjourned for the day when an ambulance was called because the claimant was “in the middle of a meltdown” and “struggling to speak”. The tribunal told the claimant she could apply again for a postponement but would need medical evidence to support the request.
A further postponement was submitted by the claimant, but this was also refused because it was not supported by medical evidence. The Tribunal considered that, if there were a postponement, there would likely be a repeat of events in 6 months’ time. Having regard to the prejudice to the respondent and its witnesses if a postponement were granted and the fact that the material events had taken place more than 4 years’ previously, the Tribunal decided on balance that the hearing should continue, and concluded the hearing in the claimant’s absence.
A letter was provided the following week by the claimant, in which her GP stated that the claimant was not fit to participate from Monday 7th to Thursday 10th February 2022 due to a panic attach caused by a combination of her autism and the pressures of the tribunal hearing. The GP also indicated that the claimant would need the rest of the month to recover. The Tribunal considered the letter but maintained that it’s reasons for not granting the postponement were still valid.
The Tribunal then went on to dismiss the claimant’s claims. It found that the emails were “on any analysis unprofessional, deeply offensive, insulting, threatening and some of them clearly blackmailing”.
The claimant appealed against the refusal to vary the evidence running order, the refusal to grant a postponement and the dismissal of her claims. All her appeals failed.
The EAT found that:
the Tribunal was right to consider the severity of the impact of cross-examination on the claimant, given her ASD, above and beyond the distress that any litigant in person would experience;
the Tribunal was entitled to consider the extent to which the postponement request was supported by medical evidence;
the claimant had indicated that she had prepared her cross-examination of the respondent’s witnesses;
the Tribunal’s concerns about reversing the evidence running order deserved weight;
reasonable adjustments were considered at the start of the hearing and implemented throughout, including frequency of breaks, the respondent being required to provide a list of topics, the order they intended to cover them and to frame questions so as to take into account the claimant’s ASD
the refusal to grant a postponement was not perverse:
the claimant had been forewarned that medical evidence for a postponement would be required, and what it would need to cover
the Tribunal took due regard of the ambulance report and noted that the claimant had not been treated or hospitalised
at the relevant time it had no medical evidence that the claimant was not fit to attend nor any prognosis as to when she would be fit enough
the Tribunal had properly taken into account:
the 4-year time period since the events in question, and the prejudice to the respondent and its witnesses if there were to be a postponement;
the prospects of the claimant being any more able to complete the hearing if it resumed in the future
it was not unreasonable to consider that the situation was likely to repeat itself in the future if there were a postponement.
Even taking into account the claimant’s right to a fair trial, the factors against postponement tipped the scales and the balance of justice favoured continuing
Even if medical evidence fully supports a postponement there is no automatic entitlement to a postponement.
The claimant’s conduct for which she was dismissed was not something arising from the claimant’s ASD, but, even if it were, the sending of numerous emails of this nature was so serious and egregious, that her dismissal was justified.
Comment
It goes without saying that any postponement request or other application for variation of established tribunal procedure on grounds of witness ill health, whether by claimant or respondent, ought to be supported by robust medical evidence and made in good time, but, even then, there is no guarantee that an application will be granted. Such applications should also focus on why justice requires the application to be granted and the impact on the other party and its witnesses should be addressed. Also, having ASD was not a licence for the claimant to act with impunity. Employers can dismiss disabled employees for bad behaviour, and dismissal can be justified, even if the bad behaviour arises as a consequence of the disability. However, each case will be decided on its own merits so it will often be prudent for employers to take appropriate legal advice before taking disciplinary action against disabled employees.