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EMPLOYMENT TRIBUNAL case update - Representation Appeal success




In the case of Bennett v London Borough of Islington [2024] the Employment Appeal Tribunal decided that the Claimant was able to have her case reheard following an incorrect decision by the Employment Tribunal to proceed with a Trial wiithout the Claimant's representative who had been taken ill. The Claimant herself had disabilities and was unable to represent herself.


The Legal Facts:


The claimant brought claims of unfair dismissal and disability discrimination, listed for a 10-day hearing.


The claimant was represented by Mr Ibekwe, a volunteer from a charity, who fell ill with kidney stones before the hearing.


The Tribunal refused three applications to postpone the hearing made before its commencement.


On the first day, the Tribunal proposed to continue with adjustments for Mr Ibekwe's ill health.


On the second day, Mr Ibekwe confirmed he would not attend, citing his doctor's advice and severe pain.


The claimant stated she could not proceed without representation due to her disabilities.


The claimant submitted that the Tribunal failed to consider her difficulty representing herself due to her disabilities, after losing her representative. It should have granted a short postponement to obtain medical evidence on this issue.


The respondent argued the Tribunal properly considered the position having regard to its previous decision, and was not required to adjourn once the claimant's representative withdrew.


The Law applied:


The Employment Tribunals Rules of Procedure 2013 applies to all proceedings before an employment tribunal, except where separate rules of procedure made under any enactment are applicable.


Rule 29 of the Employment Tribunal Rules 2013 grants the Tribunal broad case management powers. Specifically, it allows the Tribunal to make a case management order at any stage of the proceedings, either on its own initiative or upon application by a party.


Rule 30A of the Employment Tribunal Rules 2013 outlines the procedure and conditions for postponement applications.


If an application for postponement is made less than seven days before the hearing, the Tribunal may only order the postponement if: (a) all other parties consent to the postponement and it is either practicable and appropriate for resolving disputes by agreement or in accordance with the overriding objective; (b) the application was necessitated by an act or omission of another party or the Tribunal; or (c) there are exceptional circumstances. Exceptional circumstances may include ill health related to an existing long-term health condition or disability.


What went wrong with the Tribunal decision?


The Tribunal erred by treating the issue as solely about the claimant's witness statement, when it also needed to consider her ability to represent herself at the full hearing given her disabilities.


The Tribunal failed to sufficiently consider the medical evidence of the claimant's disabilities and Mr Ibekwe's worsening ill health preventing his representation.


Given the 10-day listing, the Tribunal should have at least granted a short postponement to allow further medical evidence on the claimant's capacity to represent herself.


The Ruling


The claimant's appeal against the refusal to postpone the hearing was allowed.


The case was remitted for a fresh hearing before a differently constituted Tribunal.


What are the Grounds that can be appealed against an Employment Tribunal decision?


The grounds for appeal in an employment tribunal are primarily based on identifying an arguable error of law in the tribunal's decision. The Employment Appeal Tribunal (EAT) will not typically re-examine issues of fact but will focus on legal errors. The grounds of appeal must clearly and briefly identify the points of law which form the basis of the appeal.


Specific grounds for appeal may include:


1. The employment tribunal applied the wrong legal test or incorrectly applied the correct legal test. The appellant must specify the correct legal test and how the tribunal erred in its application.


2. The tribunal reached a decision of fact for which there was no evidence. It is insufficient to argue that there was more evidence for an alternative conclusion.


3. The decision was one that no reasonable tribunal, properly directing itself on the law, could have reached. This is often referred to as a "perversity" ground of appeal and is particularly challenging to establish.


4. The tribunal failed to take into account a relevant matter or took into account an irrelevant matter. The appellant must specify the relevant or irrelevant matter and how it impacted the decision.


5. The tribunal decided a point that was not argued, or gave reasons that do not enable a party to understand why they lost


6. The tribunal did not follow the correct procedure in a way that affected the outcome, or conducted the hearing in an unfair way. Full details of the procedural error or unfair conduct and its impact on the outcome must be provided.


It is important to ensure that all errors of law relied upon are included within the Notice of Appeal, as the EAT will usually not allow new grounds to be argued at the hearing that were not raised in the Notice of Appeal. If additional grounds are identified after submission, an application to amend the original Notice of Appeal must be made.


What are the time limits?


The time limit for appealing an Employment Tribunal decision is generally 42 days. This period starts from the date on which the written record of the judgment was sent to the parties. However, if written reasons for the judgment were requested either orally at the hearing or in writing within 14 days of the judgment being sent, or if the reasons were reserved and subsequently provided in writing, the 42-day period begins from the date the written reasons were sent to the parties.


For appeals against an order, direction, or other decision of an Employment Tribunal, the time limit is also 42 days from the date of the order, direction, or decision.


It is important to note that the time limits are strictly enforced. The day on which the judgment or written reasons are sent does not count towards the 42-day period, and the complete Notice of Appeal must be received by the Employment Appeal Tribunal (EAT) by 4 pm on the final day of the period.


Extensions of time to submit a Notice of Appeal are only granted in exceptional circumstances, and a full and honest explanation for any delay must be provided



PW-LA can assist you with reviewing the decision taken by an Employment Tribunal whether you are an employer or employee. However there are time limits which must be strictly adhered to. Do not delay seeking legal advice.



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