Arfan Khan led Alexander Rozycki from St Philips Chambers on appeal to the EAT before Mr Mathew Gullick QC (sitting as a Deputy High Court Judge). Arfan Khan has led in numerous reported cases of complexity, particularly at the appellate level, originally as a protege of the late Mark Littman QC, who was widely known as one of the leading advocates of the 20th Century.
There were two appeals in this case: appeal X and Y.
In appeal X, the issue was whether there was a procedural irregularity in the way in which the Employment Tribunal (“the ET”) had dealt with the Appellant’s application for reconsideration, and if so, whether the appeal should be allowed. The ET dismissed the employer’s application to strike out the Appellant’s claim. In the course of its judgment on the striking-out application, it criticised the Appellant’s conduct at the hearing. The Appellant applied for reconsideration of the ET’s judgment, which was refused, and she appealed against that refusal.
The EAT accepted the submission on behalf of the Appellant that there was a procedural irregularity and, therefore, an error of law, where the ET had represented in a letter that the Appellant’s application for reconsideration would be subject to a determination under Rule 72 (2); but had proceeded to dismiss the Appellant’s application summarily under Rule 72 (1). The EAT further accepted the submission on behalf of the Appellant that the parties – and, in particular, the Appellant – were not to know, and did not know, that the Employment Tribunal had issued that letter in error. The EAT held, however, that the procedural irregularity made no material difference to the outcome. The reconsideration application could not have been successful in any event. It sought to challenge the reasons in relation to the ET’s criticism of the Appellant’s conduct. These reasons were not essential to the ET’s decision on the strike-out application, which was favourable to the Appellant. The EAT held that an application for reconsideration was not a vehicle for challenging reasons, in so far as not part of the essential reasons upon which the decision is based. In these circumstances, the application for reconsideration was not permitted by the Tribunal Rules.
In appeal Y, the EAT determined a number of issues as follows:
(1). The EAT determined the correct test for the determination of “exceptional circumstances” in Rule 30A where a third postponement was sought on the grounds of short-term ill-health. The EAT agreed with the submission on behalf of the Appellant that the category of exceptional circumstances is not closed, and it is a question for the judgment of the ET in each case as to what constitutes exceptional circumstances. The EAT accepted the submission on behalf of the Appellant that no assistance could be derived from rule 30A (4) (b) which was concerned with ill health consequent upon a long-term condition. The EAT further accepted the submission on behalf of the Appellant that the overriding objective in Rule 2 applied to “any power” given to the ET under the Rules, so “including the power to adjourn in Rule 30A (3)”. This meant that the question before the ET was whether there were exceptional circumstances, rather than a separate test of fairness, which was satisfied in any event. This involved considering the least worst solution. The EAT held that there were no exceptional circumstances where the Appellant had laryngitis and needed to rest her voice for a week. The ET had legitimately considered that the Appellant could participate despite her laryngitis. The ET had found that the equipment provided by R worked perfectly. However, the Appellant had not attended to make use of it, and there was no requirement that a person has to be present at a hearing for the hearing to be fair.
(2). The EAT also considered whether there had been an infringement of the Appellant’s Article 8 rights where the ET had directed a case management hearing to be held in private, and where reference was made to the contents of the private hearing in the course of a public hearing. The EAT held that Article 8 was not engaged. It held that the concept of a private hearing in a Court or Tribunal is not the same as a litigant’s private life. The EAT held that no reasonable expectation of privacy arose from the terms of the ET’s Notice of Hearing directing that the hearing be in private. The EAT held that, even if Article 8 had been engaged, the ET had not erred in the balancing exercise when considering an application under Rule 50.
(3). The EAT rejected the Appellant’s contention that the ET was perverse.
The judgment can be accessed here: https://www.bailii.org/uk/cases/UKEAT/2021/2019-000480.html