In Kaler v Insights ESC Ltd, the EAT has confirmed that an Employment Tribunal was entitled to refuse a postponement application made part way through a hearing despite medical evidence that an autistic litigant-in-person had experienced a panic attack caused by the pressures of the hearing.
Ms Kaler was dismissed from her position as a school assistant vice principal for sending multiple abusive, threatening and harassing emails. She argued that her conduct arose as a consequence of her disability, Autistic Spectrum Disorder (ASD), and brought various Tribunal claims as a litigant-in-person, including a claim for discrimination arising from disability.
Ms Kaler’s claim was listed for a five-day remote hearing. She gave evidence during the first three days. Over the intervening weekend, she applied for a postponement of the remainder of the hearing on the basis that she was too unwell to continue. Having initially refused an adjournment, the Tribunal did then adjourn on the next day of the hearing when an ambulance had to be called because Ms Kaler was experiencing a panic attack. However, her further request for a postponement was refused because of insufficient medical evidence, the prejudice caused to the employer and its witnesses by any further delay, and concerns that she could experience similar health issues again. The hearing was concluded in Ms Kaler’s absence, and her claims were dismissed.
On appeal, Ms Kaler argued that the Tribunal’s decision to refuse a postponement was perverse. However, the EAT agreed with the Tribunal’s reasoning. Her medical evidence (a GP’s letter) lacked sufficient detail to justify a postponement, and there was nothing to indicate that the pressures of a resumed hearing would not have the same effect on her. The EAT noted that Tribunals are not bound to accept medical opinions without question, particularly where prognosis or recovery is uncertain. It also agreed that postponement would impact the employer’s right to a fair trial within a reasonable period of time since it was nearly four years since her employment had ended.
The EAT also rejected Ms Kaler’s appeal against the dismissal of her claims. Her conduct did not arise in consequence of her ASD, and even if it had, dismissal was justified and proportionate given the serious content of her emails, their wide circulation, the impact on her colleagues and her refusal to stop sending them.
It is difficult to overturn decisions on postponement since they can only be challenged on perversity grounds. Assessing an application for postponement is a delicate balancing exercise. Tribunals will have to weigh up fairness to all parties, taking into account the need to avoid undue delay and prejudice to either party’s case. If the postponement is on medical grounds, including mental illness, expert evidence must be submitted promptly, explaining the diagnosis, prognosis and precisely why the party is unfit to attend. However, as this case illustrates, even where a party produces clear medical evidence that they are not fit enough to participate in a scheduled hearing, they are not automatically entitled to a postponement, as Tribunals are not obliged to defer uncritically to the clinician’s view.
