Guidance on postponing an employment tribunal hearing

Under Schedule 1 – Employment Tribunals Rules of Procedure of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (Rules), which came into force on 29 July 2013, both the President of the Employment Tribunals in England and Wales and the President of the Employment Tribunals in Scotland can publish Presidential guidance ‘as to matters of practice and as to how the powers conferred by these Rules may be exercised’ (rule 7). When making decisions, employment judges must have regard to any Presidential Guidance issued. However, they will not be bound by it.

An employment judge can make an order to postpone a hearing under the general case management powers set out in rule 29 of the Rules, and a party can make a postponement application under rule 30 of the Rules. There is no specific rule relating to postponement applications. However, specific guidance about how such applications should be made is now contained in the new Presidential Guidance published in December 2013.

Although a party to an employment tribunal case can make an oral application for a postponement of a hearing (ie at the start of the hearing itself), the application should normally be made in writing to the tribunal office. The Presidential Guidance sets out the details of the information and supporting documentation that should be included as part of such a written application.

The application

The Guidance states that an application for the postponement of a tribunal hearing (whether a final hearing, a pre-hearing review or any other hearing) should:

• state the specific reason(s) for applying for the postponement;
• explain why the applicant (either claimant or respondent) considers it would be in accordance with the ‘overriding objective’ for the tribunal to grant the postponement (ie (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and/or (e) saving expense);
• confirm if the application has been discussed with the other party (or their representative) and whether they agree with the application and in any event copy the application to the other party (or their representative) notifying them that any objection to the application should be sent to the tribunal as soon as possible; and
• provide supporting documents.

The information required to support the postponement application

The Guidance provides examples of what information and/or documentation is expected to be provided in support of an application for the postponement of a hearing.

Medical grounds

The application should be supported by a medical certificate explaining the nature of the health condition and a statement from the relevant medical practitioner confirming that the party or witness is unfit to attend.

Unavailability of a party or witness

The application should explain the reason for the unavailability, what attempts have been made to make alternative arrangements, and, if a witness, the relevance of their evidence to the case. Supporting documents (eg travel documents) should also be provided.

Unavailability of a representative

The application should explain the reason for the unavailability, what attempts have been made to make alternative arrangements. If a representative has withdrawn from acting details should be given as to when this has happened and whether alternative representation has been or is being sought.

Outstanding appeal

The application should provide full details of the dates of the appeal (eg to the Employment Appeal Tribunal or other court) and the matters being appealed.

Other court proceedings (civil or criminal)

The application should provide details as to: when these proceedings were commenced; what they entail; and how it is said that they will affect the tribunal case or how the tribunal case will be said to affect those other proceedings.

Late disclosure of information or documents or the failure so to disclose

The application should provide details of: the documents or information concerned; how they are relevant to the issues in the case; the terms of any orders that already have been made by the tribunal or requests made by the parties for such information or documents; and the response of the other party concerned.

Insufficient time allocated to complete hearing

It is worth noting that the Guidance has no specific requirements where, as is commonly the case, an application is made to postpone a hearing on this ground. In such case, the application should set out why there is insufficient time to complete the hearing (eg because of the number of witnesses and/or the amount of documents involved in the case).

Decision

An employment judge can make an order, granting or refusing an application to postpone a hearing, under the general case management powers set out in rule 29 of the Rules.

According to the Guidance, if any of the requirements set out above are not complied with, the application will be rejected unless there are exceptional circumstances. In such circumstances, an explanation as to why those requirements have not been complied with should be given as part of the application.

Where the hearing concerned has been fixed with the agreement of the parties, this will be taken into account by the employment judge considering the application.

If the application is supported by the other party, this will also be taken into account but it will not guarantee that the application will be granted.

Comment

The Guidance is designed to ensure that applications for postponements are better thought out and better presented than they often have been in the past. They are also intended to bring about greater consistency and certainty in decision-making across the regions on these applications. These aims are likely to be achieved once the penny has dropped that ill-prepared postponement requests will almost certainly be refused.

If you would like to discuss your employment situation and dispute with an employer or you would like a review of your employment contract then call us today in confidence on 03456 381381, or email your details to employment@ibblaw.co.uk.