Tribunal Hearing Can Go Ahead in Claimant’s Absence

The right to a fair trial under Article 6 of the European Convention on Human Rights does not mean it will necessarily be unfair to proceed in a party’s absence. 

In Transport for London v O’Cathail, O made a number of unsuccessful applications to postpone the hearing of his disability discrimination claim but eventually it was adjourned until 21 February 2011.  He again applied for a postponement on 21, 22 and 23 February on ill-health grounds but was refused.  The tribunal held that this was one of the rare cases where it would be more unfair to allow another postponement than to proceed in the claimant’s absence. The tribunal took into account that:

• The proceedings were stale - the claims concerned events dating back to 2008;
• The hearing had already been delayed at O’s request;
• Two of  the employer’s witnesses were already unavailable, and if the hearing was delayed again a third witness would also be unavailable;
• There would be wasted costs if the case was postponed again;
• The claim did not relate to dismissal, and compensation would be limited to an award for injury to feelings;
• Considerable tribunal resources had already been spent on this claim;
• Other claims awaiting judgment in the tribunal system would be affected by a further delay; and
• Much of the evidence relied upon by O was documentary, and therefore the tribunal could fairly assess it without his oral submissions.

The EAT allowed O’s appeal, holding that the tribunal decision was plainly wrong as it denied O the right to a fair hearing.   The Court of Appeal disagreed.  Tribunals must be fair to both parties.  O “did not have a monopoly on the fairness factors” in this case.  The tribunal had been right to take into account the unfair effect a further postponement would have on the respondent.  The right to a fair trial does not mean it will necessarily be unfair to proceed with a hearing in a party’s absence.

Although it will be rare for a hearing to proceed where a claimant is too sick to attend, this case demonstrates that there will be cases where it will be unfair on a respondent to postpone.  In considering fairness to both parties, the tribunal must balance the right of one party to be present at the hearing with the right of the other to have a trial within a reasonable time, as well as taking into account the public interest in tribunal cases being dealt with promptly and efficiently.