Employment Cases Update

Phelan v Richardson Rogers Ltd and another UKEAT/0169/19/JOJ & UKEAT/0170/19/JOJ

Date published: 25/03/2021

Appeal against the ET’s refusal of the Claimant’s application to postpone a full merits hearing. Appeal dismissed.

The Claimant had worked for the First Respondent as a consultant for about a month. She complained of five alleged acts of direct sex discrimination and/or harassment. A preliminary hearing was postponed, on account of the Claimant suffering from anxiety and not being medically fit to attend court. In the run-up to the full merits hearing in the ET, the Claimant applied for a postponement, again on the grounds of ill-health, which the ET considered and decided not to order. The Claimant did not attend the full merits hearing and, on the Respondents' application, the ET dismissed the claims under rule 47 of the Employment Tribunals Rules of Procedure 2013. The Claimant appealed on a number of grounds, contending that the ET had erred in law in concluding that the hearing should not be postponed, notwithstanding reliable medical evidence showing that she was reasonably incapable of proceeding.

The EAT, having reviewed the authorities in detail, held that the ET had not erred in law, and that it had not been wrong to cite O'Cathail v Transport for London [2013] ICR 614, on the footing that it should have regarded it as no longer good law; nor was it wrong, as such, to cite O'Cathail, but not Teinaz v Wandsworth Borough Council [2002] ICR 1471.

Read the full text of the judgment on BAILII or download the file by clicking the link below.