Ashton & Anor v Burbage and District Constitutional Club – postponements because of ill health

The facts of Ashton & Anor v Burbage and District Constitutional Club

Mr and Mrs Ashton (“the Claimants”) were employed by the Burbage and District Constitutional Club (“the Respondent”) as stewards prior to their dismissal in 2010. They subsequently filed complaints at the Employment Tribunal for unfair dismissal and unlawful deductions from their wages by the Respondent. The Respondent in return contended that the Claimants had been fairly dismissed for redundancy and that no money was owed.

The Employment Tribunal hearing (“the Hearing”) to hear the claims for unfair dismissal and unfair deductions from wages was due to be held on 28 & 29 March 2011. Prior to the Hearing the Claimants attempted to postpone the Hearing on the basis that new documents had been disclosed to them on 4 March 2011. This particular application failed. However, on 18 March 2011 the Claimants wrote to the Employment Tribunal again applying for a postponement – this time on the basis that the Claimants were suffering with stress and were too ill to attend the Hearing on the 28^th March 2011. The application was accompanied by a letter from the Claimant’s GP in which he stated that the Claimants were suffering considerable stress and anxiety and that the Hearing should be postponed for at least 2 months so that their stress levels could be reduced.

The Employment Judge dealing with the application rejected the application as it was not stated that the Claimants were medically unfit to attend the Hearing.

The Claimants again attempted on 25 March 2011 to postpone the Hearing, enclosing with their application a further letter from their GP stating that they were medically unfit to attend the Hearing. The relevant sick notes were also enclosed. The Employment Judge again refused the application on the basis that it would cause prejudice to the Respondent and that there was no likelihood that delay would make the Claimant’s position easier.

The Claimants then indicated that they would not be attending the Hearing because of their ill health and in fact did not do so. The Employment Tribunal hearing was in fact adjourned because of the attempt by the Respondent to introduce a new reason for the Claimants’ dismissal – that there was Some Other Substantial Reason for their dismissal and their dismissal was therefore not an unfair dismissal.

The Claimants appealed against the last rejection of their application (dated 25 March 2011) to postpone the Employment Tribunal hearing.

The law

The Claimants argued that under the principles espoused in Teinaz v Wandsworth London Borough Council [2002] they were being denied justice as they were justifiably indisposed through no fault of their own to attend the Employment Tribunal hearing on 28 March 2011. Further, they had shown a genuine need for the postponement in the letter from their GP (given to the Employment Tribunal on 25March 2011) which stated their symptoms, the effect of the symptoms, and the need for a postponement.

The Employment Appeal Tribunal’s judgment in Ashton & Anor v Burbage and District Constitutional Club

The Employment Appeal Tribunal found that the Claimants had shown genuine grounds for a postponement which were not the result of their own fault. The Employment Judge had either not seen the letter or had not attached sufficient weight to it, and on that basis the application to postpone the Employment Tribunal should not have been rejected. The decision to refuse the adjournment of the Tribunal should be set aside and that the claim should be remitted to a different Employment Tribunal.

Our thoughts

Claimants seeking a postponement should:

(if possible) inform the Employment Tribunal well in advance of the need for a postponement
Provide suitable, genuine and justified reasons for the need for a postponement (demonstrating that the need for the postponement is not their fault)
If the postponement is needed because the Claimant is medically unfit to attend the Employment Tribunal, provide a strong and suitable letter from their GP detailing the need for the postponement and (preferably) how long the postponement should be for