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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kotecha v Insurety Plc (t/a Capital Health Care) & Anor [2010] UKEAT 0537_09_0705 (7 May 2010) URL: http://www.bailii.org/uk/cases/UKEAT/2010/0537_09_0705.html Cite as: [2010] UKEAT 0537_09_0705, [2010] UKEAT 537_9_705

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APPEARANCES

 

For the Appellant	MR DANIEL TIVADAR (of Counsel) Instructed by: The Bar Pro Bono Unit 289-293 High Holborn London WC1V 7HZ
For the First, Second, Third & Fourth Respondents For the Fifth Respondent	MR KEVIN O'DONOVAN (of Counsel) Instructed by: Messrs Bell Dening 15 Buckingham Gate London SW1E 3LB No appearance or representation by or on behalf of the Fifth Respondent


 


SUMMARY

PRACTICE AND PROCEDURE

Case management

The Employment Tribunal refused to grant an adjournment to the Claimant who had claimed that he was not well enough to present his case. He appealed against that decision.

Held – Dismissing the appeal, the Employment Tribunal was entitled to reach its decision especially as (a) the Claimant appeared at the hearing and according to the Tribunal presented his application "eloquently" with "no issue over his lack of capacity" [57]; (b) there was no arguable error of law in the Employment Tribunal's decision; and in any event (c) considerable deference was due to the decision of the Employment Tribunal.


 


THE HONOURABLE MR JUSTICE SILBER

I Introduction

1. This appeal raises the issue of whether the Employment Tribunal sitting in Birmingham erred in refusing to grant an adjournment to Mr Jayendra Kotecha ("the Claimant") of his claim against Insurety plc trading as Capital Health Care, David Abingdon, Clive Bell and Penni Smith ("the Respondents") on 6 November 2008 during the course of the hearing of the Claimant's claims for direct race discrimination and racial harassment against the Respondents.
2. During the course of the hearing, the Employment Tribunal made a number of orders before ultimately dismissing the Claimant's claims but these orders are not the subject of the present appeal. The history of the litigation between the parties is long and complex with numerous applications having previously been made to this Appeal Tribunal but as this appeal only raises the issue of whether an application for an adjournment should have been granted, it is unnecessary to explain all the claims that were made but it is only necessary to focus on the applications for adjournment.

II The Chronology

3. There was a Case Management Discussion ("CMD") held on 13 June 2008 at which the hearing of the Claimant's application was fixed for hearing during the period between 3 and 7 November 2008. On 18 October 2008, the Claimant wrote to the Third Respondent enclosing medical evidence and stating in his letter that he had been informed by solicitors at the Pro-Bono Group that he would not obtain legal representation and that he therefore believed that the length of the hearing would exceed five days if he was to conduct the hearing himself. On 27 October 2008, the Claimant wrote to the Employment Tribunal seeking an adjournment of the hearing explaining that:-

"Due to my alcoholism and mental illness I am unable and mentally unfit to conduct the hearing from 3 November 2008. I was hoping to get representation from Pro Bono Group who just informed me that they are no longer going to assist. I therefore ask the hearing to be postponed until I can get a no win no fee solicitor to represent me".

4. On 31 October 2008, Employment Judge Dimbylow refused the application for the adjournment and this refusal was confirmed in writing. It was refused on the basis first that this was an old case that needed to be heard, second that the Respondents objected to the postponement application, third that the Claimant's documentation in support of the application for an adjournment was insufficient and fourth that it was just, fair and proportionate that the hearing should take place as arranged.
5. Before the hearing started on 3 November 2008, the Claimant telephoned the Employment Tribunal office and left a message to say that he would not be attending because he was ill, that he would see his doctor the following day and that he would fax a medical note. When the hearing opened, counsel for the Respondents submitted that the case should proceed in the absence of the Claimant as nothing had changed from the previous Friday when the application for a postponement had been rejected especially as no proper evidence relating to the health of the Claimant had been produced. The Employment Tribunal agreed as it decided that the case should proceed because there was no change from the previous application. The Employment Tribunal said that it would read the witness statements of the Claimant and some of the exhibits and his medical evidence but that the matter would be adjourned until Tuesday 4 November 2008 when the Respondents would return by which time it was hoped that the reading by the Employment Tribunal would then be completed.
6. On Tuesday 4 November 2008, the Claimant contacted the Employment Tribunal stating first that he was ill, second that he would see his general practitioner and third that he would fax the details afterwards. In the absence of any further communication from the Claimant, the Employment Tribunal continued with its reading. The hearing resumed later. Once again the Tribunal, at the initiation of the Respondent's representative and responding to the telephone call, regarded that as an implied application for an adjournment.
7. Counsel for the Respondent submitted that the case should proceed and he referred the Employment Tribunal to the two leading authorities which were Teinaz v Wandsworth London Borough Council [2002] ICR 1471 and Andreou v Lord Chancellor's Department [2002] IRLR 721.
8. The Employment Tribunal considered the application in the light of the Claimant's own medical evidence and they had particular regard to the report of a Consultant Psychiatrist Mr G Davies, which had been significantly edited by the Claimant but which did show that the Claimant had a depressive illness and alcoholic dependency when the report was written almost six years earlier on 23 November 2002.
9. The report explained of the Claimant that "he had shown a lot of persecutory anxiety over the last six years or more almost to the level of a paranoid state".
10. The prognosis was that "I think his poor response to very good treatment so far renders the outlook for recovery from his depression doubtful. I think he is likely to continue to suffer from chronic depression". As for recovery, it was stated in the report that it "..seems an unlikely prospect in the immediate future".
11. The Employment Tribunal decided at 11.50am on 4 November 2008 in the absence of any further medical evidence that they would carry on with the hearing. None of the Claimant's witnesses turned up to the hearing on any day. Having decided that it should also read the parties' evidence, the Employment Tribunal then did so and then Mr Bell the third Respondent was sworn. At 11.57am, the clerk to the Tribunal said that a fax had arrived from the Claimant which included a medical note from Dr S. J. Allen dated 4 November 2008 in which it stated of the Claimant that:-

"This gentleman suffers from mental health problems as a result he will be unable to present his case at his upcoming Tribunal".

12. A copy of a doctor's prescription was attached which according to the Claimant was for vomiting and diarrhoea.
13. The Employment Tribunal considered the matter unsatisfactory but decided to adjourn the hearing until 11am on 6 November 2008 so as to enable the Tribunal to complete its reading of the documentation and the statements of the Respondents.
14. At the request of the Respondents, the Employment Tribunal also made orders in the light of the guidance in the two authorities to which we referred in paragraph 7 above. The Employment Tribunal required the Claimant to provide a letter of authority authorising Dr S. J. Allen to respond to certain questions relating to the Claimant's medical condition for the purpose of the Employment Tribunal.
15. The Employment Tribunal received the response on the morning of 6 November 2008 when the Claimant also appeared at the hearing to make his application to adjourn that morning but he had not brought any of his witnesses with him. In his oral application for an adjournment, the Claimant said that he did not want Employment Judge Dimbylow to hear this matter and that it was not personal but that he was just too fast. The Employment Tribunal offered adjustments for the hearing and said that the hearing could be adjusted if necessary to get over the problem as the Claimant saw it. The thrust of the Claimant's application was first that he was unable to conduct the case because of his health, second that he had made an unsuccessful application to "no win no fee" solicitors and third that he was looking for direct access to barristers to conduct the hearing for him.
16. When the Employment Tribunal asked the Claimant why Dr Davis' report had been edited, the Claimant said that it was written for a different case and that there was a personal reference in it that he did not want made public. He did concede that "I have no medical evidence to support causation at all" but he did say that he had a GP's letter confirming causation. In response to a question from the Employment Tribunal, the Claimant said that he did not know if he would ever be able to conduct the case but that he could not see himself being able to proceed with the hearing inside six months although he could not be sure then that he would be fit even at that stage.
17. When the Employment Tribunal asked the Claimant if he would like the Tribunal to hear the case by considering the papers only, the Claimant declined that offer stating that he wanted to be able to cross-examine the Respondents themselves and their witnesses.
18. The Claimant reminded the Employment Tribunal that two previous Tribunals had made errors which meant that the matter had to be remitted twice by this Employment Appeal Tribunal. The Claimant also reminded the Employment Tribunal of his suicidal tendencies and he asked for ACAS involvement and judicial mediation but the Respondents did not wish to participate in judicial mediation even if it was offered, because, according to the Respondents, this was such an old case and they wanted resolution as soon as possible. The Claimant then adjusted his position saying that he would be ready in six months and that he would be represented. He also submitted a report from Dr A. K. Jainer dated 18 September 2008 in support of his application.
19. Mr O'Donovan who appeared then as now as counsel for the Respondent opposed the application explaining first that nothing had changed since 31 October 2008, second that the report of 18 September 2008 did not say that it would be injurious to health for the Claimant to conduct the case, third that the GP report showed that there had been two visits by the Claimant to Dr Allen on 24 October 2008 as a new patient and then on 4 November 2008 for reflux and a respiratory tract infection and not for anxiety, and fourth that the GP had no access to the Claimant's notes. So Dr Allen was effectively relying on what the Claimant was telling him in a ten-minute interview and that he had adopted a cautious approach by saying "given my limited knowledge of his [the Claimant's] past history my clinical judgement would always err on the protection of my patient's health". It was also pointed out by Mr O'Donovan that the Claimant had conducted his case previously over many days and that he had represented himself on one occasion at the Employment Appeal Tribunal. Counsel also said that the prognosis from Dr Davis was that it was not clear that the Claimant would be fit in six months time, but the Claimant's evidence on the day was not consistent as his true position was that he simply wanted representation and there was no coherent evidence that he had tried to get it. Mr O'Donovan pointed out that if the case was adjourned it would be a denial of justice to others and that it would keep other litigants in the Tribunal system out of a hearing.
20. In reply the Claimant said that he did not ask Dr Jainer to confirm that he could not represent himself but he said that he asked for his report from Dr Jainer on 7 October 2008 and he could not account for its date of 18 September 2008. He said that he had personally collected it on Wednesday 5 November 2008.
21. The Employment Tribunal then gave the Claimant an adjournment to consider the two authorities to which we referred in paragraph 7 above and indeed they adjourned for 2 hours and 50 minutes upon the request from the Claimant for further time. When the hearing resumed, the Claimant made some more submissions before the Tribunal retired to consider the application. The case for the Claimant was that his case was different from the two cases cited because he had depression and alcoholism and some of the facts were different in the two cases, relying as he did on the information in Dr Allen's report and that of 9 July 2003 of Dr. O. Princewell. The case for the Claimant was proportionality was such that the case should be adjourned especially bearing in mind the need for equality of arms and he stressed that it would be a denial of justice if he had to conduct the case in his present state of health and he relied on paragraph 40 of the Teinaz report. The case for the Claimant was also set out in Dr Allen's report.
22. The approach of the Employment Tribunal was to analyse the facts and remind themselves of the importance of regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2004 which contains the overriding objective.
23. Regulation 3 states that:-

"(1) The overriding objective of these regulations and the rules… is to enable tribunals and judges to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable

(a) ensuring that the parties are on equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

(c) ensuring that it is dealt with expeditiously and fairly; and

(d) saving expense.

(3) A Tribunal Judge shall seek to give effect to the overriding objectives when it or he (a) exercises any powers given to it or him by these Regulations or the rules… or (b) interprets these Regulations or any rules…

(4) The parties shall assist the Tribunal or the Judge to further the overriding objective".

24. The Employment Tribunal refused to grant an adjournment explaining that:-

"53. The events under consideration occurred over 8 ½ years ago. The claim form was issued on 19 April 2000. However, the history of events that the Claimant asks us to consider, whether it involves issues that we have to determine in our judgment or background facts, including determining continuing acts and time points, goes back to the Claimant starting work with the first Respondent on 1 November 1998, that is 10 years ago.

54. The Claimant's case is that the hearing should not be re-listed for 6 months and even then he is not sure that he will be fit enough. The medical evidence does not give us any confidence in predicting the future. Dr Davies was right in his prognosis in 2002. The Claimant does appear to have a chronic condition as it is still present 6 years later. The Claimant is in no better position than he was then, and his own medical evidence leads us to conclude he will be no better in 6 months time. We regard the Claimant's assertions that he may be fit as simply aspiration.

55. The four individual Respondents will suffer continuing injustice if denied the opportunity to clear their names. Article 6 does not help the Claimant alone. Delay does adversely affect the hearing and affects both parties adversely. A fair trial would be less achievable in 6 months time. We would have to start again with such a passage of time.

56. The Claimant's statements have been put before the tribunal. These have been read, they can be used in place of oral testimony. We have also read them in conjunction with the contemporaneous documents.

57. We noted how the Claimant appeared before us on Thursday 6 November. There was no issue over his lack of mental capacity to act in these proceedings. He presented his application eloquently and is clearly articulate and intelligent. By his own conduct he has raised credibility issues over his own medical evidence disclosed during the proceedings. The obvious example concerns the report of Dr Davies being edited by the Claimant. Also, we were surprised at the comments the Claimant made about the acquisition of the letter dated 18 September 2008 from Dr Jainer. Dr Allen says that the Claimant delivered this to him on 4 November 2008. On 6 November the Claimant told us that he collected it personally on 5 November.

58. We concluded that the Claimant had manipulated the medical evidence. This undermined our confidence in relying upon the report of Dr Allen and less significantly that of Dr Princewell. In the circumstances we were not satisfied that the Claimant would have given an accurate account of the position he finds himself in to Dr Allen. The Claimant uses medical evidence for his own convenience and benefit when he chooses. He has not been open with the Respondents; he has not given them full disclosure in a timely way, and he is drip feeding the information to them when he considers it in his best interest to allow them access to it.

59. We also concluded that the Claimant was not happy with the constitution of the tribunal in that he was seeking to choose his judge to try this case. This again undermines the legitimacy of the application.

60. We concluded therefore that the application should be rejected and the hearing proceed, as this was just, fair and proportionate. In this case given its age, expedition and fairness were important. However, we did bear in mind that the delay was not caused by either party to a large extent. Nevertheless, we felt rejection of the application was a proper and balanced approach serving the overriding objective. By the time we finished announcing the outcome of the application it was 4.15pm and we adjourned for the day to 10am on Friday 7 November. We told the Claimant it was a matter for him whether or not he felt able to attend. The Claimant signified he may attend and may wish to seek a review of the decision not adjourn the hearing. We reminded the Claimant that we had read all of the witness statements. We would allow supplementary evidence and then proceed to cross examination of the Claimant, his witnesses and then those of the Respondent.

61. When we resumed on Friday 7 November the Claimant told us he could not conduct the case himself for the same reasons previously advanced. He then made an application to the tribunal for us to review our decision not to adjourn. It was opposed by Mr O'Donovan, including on the ground it was not a reviewable decision. We retired to consider the application. We concluded that this was, in effect, a renewed application for the adjournment made the previous day and was not, on the face of it, subject to review. The Claimant was entitled to reapply for what was another case management order. Stated shortly the grounds of the application were these:-

61.1 The Claimant now asserted that he wanted us to look at a future medical report from his psychiatrist Dr Kumar, following a further meeting which he proposes to have with him on 9 December 2008.

61.2 The Claimant had expected a barrister to be here that day but he had not attended.

61.3 The Claimant wanted more time to secure representation.

61.4 He asserted that he was not fit to represent himself that day and was uncertain if he would remain if the application to adjourn was refused. He said he did not intend to give evidence.

If the decision of 6 November was capable of review he submitted that it was on just and equitable grounds."

III The Grounds of Challenge

25. The case for the Claimant is that the decision of the Employment Tribunal to refuse the adjournment was an error of law.
26. Before dealing with the Claimant's complaints, it is necessary to point out that common ground between counsel that the two relevant authorities were Teinaz and Andreou. In Teinaz, the Court of Appeal dismissed an appeal by the employers from the order made by this Appeal Tribunal allowing the appeal of the Claimant from the decision of an Employment Tribunal which had refused the Claimant's application for an adjournment for his absence on medical grounds and dismissed his claims in his absence. The reasoning of the Employment Tribunal was that the medical grounds on which the application for an adjournment was based rested on evidence which was "utterly inadequate". [31(4)]
27. The Appeal Tribunal allowed the appeal because it considered that the Employment Tribunal did not have the material to reach the conclusions which it did.
28. In Andreou's case, the Court of Appeal allowed an appeal from a decision of this Appeal Tribunal which had itself allowed an appeal of the employee from a decision of the Employment Tribunal striking out the employee's claim on grounds of non-compliance of an earlier order requiring medical evidence to be produced in support of an application for an adjournment. Unlike the position prevailing in the Teinaz case, the Employment Tribunal in the Andreou case was faced with an application for an adjournment when the medical certificate did not address the question of whether the employee was or was not fit to attend the Tribunal hearing. It was pointed out that the fact that a person who is certified as not fit to attend work does not automatically mean that the person is not fit to attend a Tribunal hearing [41]. The view of the Court of Appeal was that the evidence produced just within the deadline was "a woefully inadequate compliance with the Tribunal's order" [42]. For those reasons, the appeal of the employer was allowed.
29. The first and basic submission made by Mr Tivadar on behalf of the Claimant is that the Employment Tribunal failed to apply the law correctly. He submits that the Employment Tribunal made no reference to the relevant observations in the Teinaz case in which Peter Gibson LJ in a judgment with which Arden LJ and Buckley J agreed made the following statement in a section of his judgment dealing with general observations on adjournments when he explained that:-

"A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to other parties. That litigant's right to a fair trial under Article 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the applicant for an adjournment to prove the need for such an adjournment." [21].

30. It is then said by Mr Tivadar that in the present case, the Claimant was unfit to give evidence and to conduct his case because as in Teinaz's case when the Employment Tribunal proceeded to hear the case "the result in [the Claimant's] absence was a forgone conclusion".
31. He also submits that the fact that the Claimant was unfit to conduct the hearing was not due to his fault and that the starting position for the Employment Tribunal following the decision in Teinaz should have been to grant an adjournment as long as the Claimant could satisfy the Employment Tribunal that his unfitness was genuine.
32. It is then said on behalf of the Claimant that the approach of the Employment Tribunal was incorrect because it stated that:-

(a) "We understand that we need to balance fairness to the Claimant with fairness to the Respondents" [52];

(b) "The four individual Respondents will suffer continuing injustice if denied the opportunity to clear their names. Article 6 does not help the Claimant alone. Delays adversely affect the hearing and affects both parties adversely. A fair trial will be less achievable in 6 months time. We would have to start again with such a passage of time" [55];

(c) "The Claimant's statement has been put before the [tribunal]. These have been read, they can be used in place of oral testimony. We have also read them in conjunction with the contemporaneous documents". [56]

33. It was pointed out that Dr Allen had initially stated on 4 November 2008 about the Claimant "this gentleman suffers from mental health problems as a result of which he will be unable to present his case at his upcoming tribunal". The Tribunal, as it was entitled to and had been advised to do so in Teinaz, sought further evidence by asking Dr Allen numerous additional questions to be answered within a short time frame. The Claimant cooperated by signing the relevant form of authority.
34. Dr Allan responded in a letter dated 5 November 2008 explaining that he had seen the Claimant on 4 November 2008 for approximately 10 minutes and that he had previously seen him on 24 October 2008.
35. Dr Allen continued by writing that:-

"With regard to [the Claimant] ever being able to present his case to a tribunal is difficult to predict, but I think you would be likely to get a more detailed answer to this question from his Psychiatrist Dr Ashok Jainer. It is my impression that presenting a case to an Employment Tribunal is quite a stressful situation for someone with no legal training. Given Mr Kotecha's past psychiatric history there would certainly appear to be a significant risk of an exacerbation of his symptoms. Given my limited knowledge of his past history, my clinical judgment will always err on the protection of my patient's health. It is my medical belief that Mr Kotecha is currently unable to present his case otherwise I would not have given him the letter he requested in the first place".

36. In opposition, Mr O'Donovan contends that the Employment Tribunal was aware of the authorities of Teinaz and Andreou which were made available to the Claimant and that the proper principles were applied by the Employment Tribunal in reaching its decision to refuse to grant an adjournment.
37. Mr Tivadar, as I have explained, attaches substantial importance to the statement of Peter Gibson LJ in the Teinaz case that "a litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment..". [21]. But that was not the position in the present case because the Claimant not only attended at the hearing but also made submissions. In consequence, the Employment Tribunal concluded in relation to the Claimant that:-

"57.. there was no issue over his lack of mental capacity to act in these proceedings. He presented his application eloquently and is clearly articulate and intelligent".

38. This was a critical finding which shows clearly that the Claimant was able to continue and that an adjournment was unnecessary. Later in their decision, the Employment Tribunal stated that:-

"172 ..It was extremely helpful to the tribunal that the Claimant attended for 2 days. This enabled us to consider the Claimant and to come to a judgment about him. Regrettably, the Claimant was evasive and manipulative. This was quite apparent from the way he introduced his evidence, particularly the medical evidence in the form of the report from Dr Davies."

39. We interject at this stage to say that the report from Dr Davies had been edited by the Claimant and the Employment Tribunal continued by stating that:-

"His explanations were unacceptable. Further the Claimant tried to manipulate the Tribunal with threats of the Employment Appeal Tribunal and his own suicidal tendencies if he did not get his way. The Claimant was not incapable of conducting these proceedings. Quite the contrary. He is articulate and intelligent as we have said before. He is quite nimble in thought and was able to ask for review of a decision on the adjournment which went against him. Unfortunately the points that he wanted to put forward as issues of discrimination were not always clear. He did not want to narrow the issues for us to deal with but rather prefer to keep them as wide and as difficult as possible to understand and for as long as possible. The Claimant changed his mind on occasions as to the level of fitness he had to participate in the proceedings. These changes were driven by him at a point in the debate when he saw an argument possibly developing against him. He changed his mind over the length of time it would take him to be fit to resume the proceedings". [172]

40. Although some of those comments relate to matters which occurred after the time of the adjournment application, they do establish that the Employment Tribunal was correct or at least had not made an error of law in concluding that the Claimant was able to conduct proceedings properly.
41. The reasoning of the Employment Tribunal in rejecting the application for an adjournment was set out in paragraph 60 where it was explained that:-

"We concluded therefore that the application should be rejected and the hearing proceed, as this was just, fair and proportionate. In this case given its age, expedition and fairness were important. However, we did bear in mind that the delay was not caused by either party to a large extent. Nevertheless, we felt rejection of the application was a proper and balanced approach serving the overriding objective".

42. In our view, there is no arguable error of law in the reasoning of the Employment Tribunal for four reasons which individually and cumulatively entitle us to reach that conclusion. First, unlike in the situation referred to by Peter Gibson LJ in Teinaz and which I quoted in paragraph 29 above, the Claimant was not only able to be present at the hearing but also in the opinion of the Employment Tribunal, he had the mental capacity to act and he presented his application eloquently. Second, we consider such a conclusion which was open to the Tribunal is much more relevant and cogent than the views of Dr Allen, who saw the Claimant for only a short period and who does not state that he knows much about an Employment Tribunal. Third, as Arden LJ explained in Teinaz, on an issue such as the review by an appellate court of a decision on a request for an adjournment, such an issue "involves the grant of considerable deference to the Tribunal" [37]. This fortifies our conclusion that the decision of the Tribunal cannot be challenged. Finally, the great experience of the lay members of this Appeal Tribunal is that members of the Employment Tribunal would be able to decide if a Claimant could present his case properly and that should be a determinative factor.
43. We should also point out that there was criticism made by the Claimant of the statement of the Employment Tribunal that in relation to the Claimant that:-

"57. By his own conduct he has raised credibility over his own medical evidence disclosed during the proceedings. One example of this concerns the report of Dr Davies being edited by the claimant. Also, we were surprised by the comments the claimant made about the acquisition of the letter dated 18 September 2008 from Dr Jainer. Dr Alan says that the claimant delivered this to him on 4 November 2008. On 6 November the claimant told us that he collected the letter on 5 November.

58. We concluded that the claimant had manipulated the medical evidence. This undermined our confidence in relying on the report of Dr Alan and less significant that of Dr Princewell. In the circumstances we were not satisfied that the claimant would have given an accurate account of the position he finds himself in to Dr Alan. The claimant uses medical evidence for his own convenience and benefit when he chooses. He has not been open with the respondents; he has not given them full disclosure in a timely way, and he is drip feeding the information to them when he considers it is in his best interest to allow them access to it"

44. In our view, although the Claimant disagrees there is no arguable error of law in this reasoning especially as the Tribunal were the designated fact-finders. The Tribunal was entitled to reach those conclusions. All the other grounds of the Claimant also fail as the Tribunal was entitled to reach the conclusion which it did and we stress that if (which is not the case) we had been in any doubt about this case, we would have dismissed this appeal out of deference to the Employment Tribunal on the case management issue of deciding whether an adjournment should have been granted. None of the other grounds relied on by the Claimant succeed if, as we believe to be the case, there was no error in the conclusion of the Tribunal to refuse an adjournment. We stress the importance of the finding set out in paragraph 37 above the Employment Tribunal was well able to make this judgment, which shows no error of law in the decision to refuse an adjournment.
45. Notwithstanding the admirable submissions of Mr Tivadar, both counsel agree that in the light of this judgment, this appeal must be dismissed and we so order.