Disability Discrimination

27 May 2020

Can you refuse to postpone a hearing to allow a medical report?

With thanks to Daniel Barnett’s Employment Law Bulletin

Was a refusal to postpone a hearing to allow a medical report to be obtained an error of law?

Not on the facts of the case, held the Court of Appeal in Morton v Eastleigh CAB.

The Claimant was dismissed in November 2016. She brought claims of disability discrimination concerning her eating disorder, depression, anxiety and agoraphobia.

In July 2017 the Parties were ordered to obtain a joint medical report should the CAB not concede the Claimant was disabled. The reasons for the CAB’s denial of disability in its ET3 and statement lodged in August had allowed the Claimant to set out a detailed reply in support of her case.

The CAB conceded one of the disabilities and denied the need for the report. Initially one employment judge directed the report was still required, but 11 days before the preliminary hearing a second judge set this aside.

The Claimant repeated her request for a joint report on 23 October and asked for a postponement of the preliminary hearing set for 30 October. The CAB then set out further argument on 24th October, triggering a further application for postponement again asking for a joint report, or to instruct her own expert if that was refused. The application was rejected on the working day prior to the hearing by another employment judge and, when the application was again made at the hearing citing several grounds, refused by the employment judge.

The Claimant appealed to the EAT and then the Court of Appeal, alleging that it was perverse for her application to be refused, particularly in the light of the previous conflicting decisions about the need for a joint report.

Dismissing the appeal, the Court reminded itself that r.30A(2) Employment Tribunal Rules requires ‘exceptional circumstances’ to grant postponement applications made within seven days of a hearing.

Whilst there was conflict in the judicial decisions on the report, neither dealt with a postponement and the order that no joint medical report was required had not been appealed. An application for a postponement was a case management issue and the employment judge had a wide discretion in deciding whether or not to grant it. The Claimant had sufficient information to deal with the issue of whether she was disabled and had been capable of instructing her own expert in time for the hearing.


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