An employment tribunal had made a reasonable adjustment by referring a disabled claimant to the Bar Pro Bono Unit (now called Advocate), to get a free legal representative. The Court of Appeal held this was sufficient adjustment, on the facts. The court said normally it is entirely appropriate for a tribunal to leave it to the legal representatives to take the lead in suggesting adjustments for a disabled litigant, though the court has ultimate responsibility. More: Appearing in court.
Court of Appeal, 2019. Full judgment: www.bailii.org/ew/cases/EWCA/Civ/2019/815.html
The claimant succeeded in a claim for sex discrimination against her employer. The difficulties came with later tribunal hearings to determine the size of compensation, known as remedy hearings, when the claimant had suffered a serious breakdown in her mental health. (She claimed this was at least partly a result of her employer’s conduct and so should increase compensation).
At first in the remedy hearings the claimant was not represented by a lawyer. She then instructed solicitors but only on a somewhat limited basis. At a hearing in January 2014, scheduled for three days to consider psychiatric expert reports from each party, she said she had expected to have a legal representative but the solicitors did not appear. The legal issues involved were complex. The tribunal suggested and the claimant eventually accepted that the tribunal should adjourn the hearing and refer the case to the Bar Pro Bono Unit. This resulted in the claimant being legally represented for free at two further hearings where her compensation was decided.
The claimant appealed to the Employment Appeal Tribunal, saying she was a vulnerable witness who had been subjected to criminal style advocacy, including a two-day aggressive and/or oppressive criminal cross-examination without any special measure being put in place. The EAT did not allow the appeal to proceed, saying she had been legally represented in the latter stages and her counsel had raised no concerns that she had not received a fair hearing.
Her appeal to the Court of Appeal was on amended grounds, namely that the tribunal failed to make reasonable adjustments for the claimant, a disabled person, and thereby failed to act fairly. In particular the tribunal:
- did not conduct a ‘ground rules hearing’ or equivalent;
- did not instruct an independent expert to inform the tribunal on reasonable adjustments; and
- did not properly discuss with the claimant various options in relation to securing legal representation.
Held by the Court of Appeal: the tribunal had made sufficient adjustments by facilitating a lawyer to represent the claimant.
Underhill LJ, giving the judgment of the Court of Appeal, said his strong provisional view when he first read the papers was that the conduct of the tribunal at the January 2014 hearing was unimpeachable. The tribunal appreciated, on the basis of the expert psychiatric reports which it had seen, that the claimant appeared still to be suffering a disability which might put her at a disadvantage in conducting her case in person, not least because of the complex nature of the issues. These might indeed have created a problem for any litigant in person, but the tribunal specifically referred to the need for reasonable adjustments on account of her disability. The tribunal identified as an adjustment that the hearing should be adjourned so that the claimant could seek representation from the Bar Pro Bono Unit, which it offered to facilitate by writing a referral letter itself. The result of the tribunal’s decision was that she was professionally represented by counsel, free of charge, at the two subsequent hearings which were in practice decisive of the remedy issue.
Main onus is on legal representatives to suggest adjustments
The claimant’s lawyer argued that it was not enough for the tribunal simply to take steps to ensure that the claimant was professionally represented. The tribunal should “take ownership” of the problem itself and make its own assessment about what substantive adjustments were needed in order to ensure that the claimant was not disadvantaged by her disability. That, argued the claimant’s lawyer, was the whole purpose of a “ground rules hearing”. In the circumstances of the present case it was particularly important that the tribunal obtain its own expert advice on the claimant’s condition, which was not straightforward.
The court said firstly the claimant’s lawyer did not suggest that there was any specific adjustment that should have been made at the later hearings. In particular, the claimant’s complaint about inappropriate cross-examination was not repeated.
The argument was therefore academic in the present case, said the court, but in any event it was not well-founded:
“…In the generality of cases it is entirely appropriate for a tribunal to leave it to the professional representatives of a party who is under a disability, or indeed otherwise vulnerable, to take the lead in suggesting measures to prevent them suffering any disadvantage. The representatives can be expected to have a better understanding than the tribunal of what the party’s needs are, and access to appropriate medical advice; and there is also a risk that if the tribunal itself takes the lead in seeking to protect a party (or witness) it may give the impression of taking their side. This involves no abdication of responsibility by the tribunal. Of course it retains ultimate responsibility for seeing that a disabled party receives a fair hearing, and I do not rule out the possibility that there may be cases where a tribunal should take steps for which the party’s representative has not asked; but those will be the exception, and the default position is that the tribunal can expect a party’s interests to be looked after by his or her representatives.”
That being so, it was sensible for the tribunal in this case to try first to see if legal representation could be obtained. It was, and the representative could be trusted to propose whatever other accommodations might be necessary. A ground rules hearing before the claimant obtained representation would have made no sense.
Ground rules hearings
There is no rule that where there is a disabled witness there has to be something labelled a “ground rules hearing”. What fairness requires will depend on the particular circumstances. In an employment tribunal case of any complexity there will be a case management hearing where issues about adjustments would typically be canvassed – though if that has not happened problems can usually still be resolved at the substantive hearing itself.
It is important to make appropriate adjustments
This did not limit the importance of tribunals making whatever adjustments are reasonably required to ensure that vulnerable parties or witnesses are enabled to present their case and/or give their evidence effectively, or of their ensuring that they have the appropriate information for that purpose.
However what particular measures are required will depend on the circumstances of the case. The court deprecated any mechanistic approach.
The court did not have to consider an argument that whenever for the purpose of a ground rules hearing there is no, or no adequate, expert advice provided by the parties as to the nature of any reasonable accommodations, the tribunal was under an obligation to commission such advice itself, at public expense. The court commented there were evident difficulties about this submission, and the cases in which the issue may arise in practice were likely to be very few.
However the question did not arise on the facts of this case. Both parties had access to expert psychiatric advice. The tribunal was fully entitled to proceed on the basis that the claimant’s lawyer would consider what advice it was necessary to seek from her expert and make any necessary representations about reasonable accommodations based on that advice.
Having a lawyer to conduct a case on their behalf can be particularly helpful for someone who stammers. A reasonable adjustment made by the tribunal here was referring the claimant to the Bar Pro Bono Unit – now called Advocate – so she could get a free legal representative. This might have been an appropriate adjustment for someone who stammers, especially if more complex legal issues are involved as in this case. However (as at January 2021) individuals can now apply to Advocate direct, without needing a referral. The individual is likely to want to do so at an earlier stage than happened in this case. For Advocate and other options, see Sources of help and advice>Volunteer lawyers.
The case rather leaves open what happens where someone continues to conduct a case without a lawyer. The court may have a greater obligation here, but It is sensible for a disabled litigant
The Court of Appeal did not rule out the possibility that there may be cases where a tribunal should take steps for which the party’s representative has not asked. The court retains ultimate responsibility for seeing that a disabled party receives a fair hearing.