The Appellant claimed that a lack of procedural fairness by the IT had deprived her of her right to a fair hearing due to:
1. The refusal of an adjournment after finding herself without legal representation the day before the hearing commenced; and
2. The tribunal’s failure to make reasonable adjustments in relation to her dyslexia.
The CA found that the overriding criteria for adjournment was that of procedural fairness not fairness in the sense of reasonableness. The CA held that:
“The principle espoused by this court is that in any review or appellate challenge to a first instance decision to refuse an adjournment application advance on whatever grounds, the test to be applied is whether this had the effect of unfairly depriving the litigant of a fair hearing. It is no answer, no objection in principle, to say, particularly in cases of asserted ill health, that this must almost invariably require the court or tribunal to adjourn the hearing. First because of a litigant’s fundamental right to a court, second every court will be jealous to guard against a misuse of process, and third the terms of the test are not absolute.”
The CA held that the Appellant should have been granted an adjournment because: She was suddenly without legal representation and afflicted with dyslexia; in possession of expert evidence that showed she suffered from depression and anxiety, which had a huge impact on her; did not have the benefit of a ground rules hearing or reasonable adjustments; no facts had been agreed between the parties; and the Appellant was not familiar with that sphere of law, albeit that she was legally qualified.
The CA found that the Tribunal had failed to conduct the necessary ground rules hearing, made no determination of reasonable adjustments prior to, or at any stage in the hearing, didn’t engage with expert evidence, and did not make decisions with an open mind. It also found that any adjustments that were made were perfunctory and inadequate and were not specifically tailored to the Appellant. The IT also conducted cross-examination with no allowance for her disability.
The matter was returned to the tribunal for rehearing.
For the full judgment click here