In Bennett v London Borough of Islington the Employment Appeal Tribunal (EAT) decided that an Employment Tribunal was wrong to reject Ms Bennett’s application on the second day of a ten day trial to postpone the hearing because her legal representative became unavailable. This change was a material one in the circumstances.
The Claimant had made a postponement application the previous day around whether she could fairly represent herself at the hearing because of her mental health disability. This was refused. The EAT held that the tribunal should have taken into consideration whether the refusal to grant a postponement on medical grounds engaged the Claimant’s right to a fair trial according to Article 6 of the European Convention on Human Rights. The hearing was listed for 10 days. The ET should have at least considered a short postponement to allow the Claimant to seek medical evidence regarding her ability to represent herself rather than dismissing the application out of hand.
At the outset of the hearing the Claimant requested a postponement based on the availability of her legal representative. The Claimant’s disabilities of PTSD and dyslexia had been conceded by the Respondent. The application was refused because if the hearing was to be relisted, it would not be heard until June 2022 (the hearing took place in March 2022).
The postponement application was made again on the second day, in the absence of the Claimant and her representative, which confirmed that the representative was unable to represent the Claimant and the Claimant was unable to represent herself in such a complex case. The Tribunal refused again, and the hearing proceeded. The Claimant lost her claims and appealed to the EAT.
The EAT allowed her appeal and considered that the renewed application to postpone on day two was made on different grounds; it was for the Tribunal to determine whether the Claimant had the ability to represent herself. Medical evidence confirmed she would have significant difficulties in representing herself. The Tribunal had failed to consider the full implications to the Claimant of losing her representative and having to represent herself.
We often act for clients who have mental health disabilities. The idea of one of them having to represent themselves at a 10-day employment tribunal, with all the challenges that encompasses, is unthinkable. From a professional perspective the original decision of the Employment Tribunal was draconian and unfair. The EAT was right to determine the appeal as it did.
This blog was written by Elizabeth McGlone, Partner at didlaw.
