Aug 23
The claimant brought claims against the respondent employer for direct discrimination, harassment, less favourable treatment as a part-time worker and victimisation. She was unrepresented for the preparation period but had representation from counsel for at least one case management hearing and the final substantive hearing. At a case management hearing at which the claimant was represented, orders were made providing for the sending of bundles and exchange of witness statements well in advance of the final hearing, to take account of the claimant’s dyslexia. However, in breach of those orders, the respondent’s bundle was only sent to the claimant five days before the hearing and the witness statement was sent the night before. The claimant objected to the respondent’s bundle, comprising two lever arch files, and had her own, comprising five lever arch files. The tribunal decided to work from the respondent’s bundle, but to allow the claimant to add such documents as were relevant. The tribunal refused the claimant’s application to be allowed an intermediary whilst giving her evidence, on the basis that there was no medical or other expert evidence that an intermediary was required. However, the intermediary sat next to the claimant’s counsel and was permitted, during the claimant’s evidence, to indicate when a question was not being understood by the claimant or when she needed assistance. When that proved insufficient, the intermediary was allowed to sit next to the claimant to assist in finding page numbers in the bundle. The tribunal rejected all of the claims and, in its reasons, it noted an apparently marked difference between the claimant’s ability to follow questions and documents when she was at the witness table to when she was sitting next to her counsel, while he was cross-examining the respondent’s witnesses, when she had no difficulty in reading documents and passing notes, whilst keeping up with the course of the evidence.
On the claimant’s appeal, on the ground, inter alia, that the tribunal had failed to provide her with a fair hearing, because of a failure to refer to and apply the Presidential Guidance on vulnerable witnesses and the relevant sections of the Equal Treatment Bench Book (“the ETBB”)—
Held, appeal allowed. In order to comply with its duties to ensure a fair hearing, an employment tribunal had to make any adjustment which was required to allow a disabled litigant effective participation. In order to do that, it had to be able to identify, with evidence, the specific barriers which a condition or disability caused. That evidence could be, but did not necessarily have to be, expert evidence. Where there was an unrepresented party, or a party with intermittent representation, the case management order should make it clear that, if the status of a witness, their condition or disability was something that would require adjustments, evidence would need to be produced. In the present case, the tribunal had had some acceptance of the existence of specific difficulties because it allowed the intermediary to assist the claimant with locating pages. That placed an onus on the tribunal to consider whether further adjustments might be required. The tribunal did not make any reference in its reasons to the Presidential Guidance or the ETBB. While that of itself was not important, the tribunal did not set out anything which would resemble the type of analysis that should be applied to a witness with a specific learning difficulty. The tribunal appeared to rely on specific elements of the way in which the claimant’s evidence was given as a basis for deciding and impugning credibility. There was always a danger in relying on demeanour as a guide to the truthfulness of evidence. Cultural and other differences could make the reliance on such factors unreliable. The claimant was never made aware that the existence or extent of her dyslexia was in issue. Without giving the claimant an opportunity to present medical or other evidence about dyslexia, the tribunal could not, fairly, come to a conclusion on whether she was dyslexic or on what the specific aspects of her dyslexia were. In those circumstances, it would be reliant on the broad general guidance in the ETBB. On that basis, any explanation by the tribunal as to why it had come to its conclusions should engage squarely with that general guidance. There was no such engagement or explanation. Accordingly, the case would be remitted to a newly-constituted employment tribunal for rehearing (paras 30–33, 35, 36).
Edward Kemp (instructed directly through Advocate) for the claimant.
Tim Dracass (instructed by Preston Redman Solicitors, Bournemouth) for the respondent.