The court overturned a Northern Irish industrial tribunal decision because the tribunal had not made appropriate adjustments for the claimant’s Asperger’s Syndrome. The tribunal should have paid attention to the Equal Treatment Bench Book. An early ‘ground rules’ case management session should have been convened to meet the specific challenges of his condition.
Northern Ireland Court of Appeal, 2016. Full judgment: www.bailii.org.
The claimant had Asperger’s Syndrome. He made claims including disability and race discrimination to an industrial tribunal in Northern Ireland. The claimant failed to comply with various tribunal requests, and eventually the tribunal refused an adjournment and proceeded to hear the case in the claimant’s absence. It decided in favour of the employer.
Held: the tribunal decision should be overturned, as the tribunal had not acted fairly.
The Court of Appeal set out various principles, including:
- The protection of human rights is not a distinct area of law but permeates our legal system. The starting point for the common law duty to act fairly is ‘our own’ legal principles, though the courts endeavour to develop common law so as to comply with the UK’s international obligiations.
- The tribunal’s common law duty of fairness in a case of this type is fed by the increased emphasis on fairness arising out of the right to a fair trial under Article 6 of the European Human Rights Convention implemented by the Human Rights Act, the UN Convention on the Rights of Persons with Disabilities (Article 13 of this requires effective access to justice for those with disabilities on an equal basis with others), and the Framework Employment Directive.
- The appeal court must determine for itself whether a fair procedure was followed, not merely review whether the tribunal’s (or other lower court’s) decision on fairness was reasonable.
- Courts and tribunals should pay particular attention to the Equal Treatment Bench Book (ETBB) when the question of disability, including mental disability, arises.
- The ETBB gives practical advice on particular situations when they arise. It says that decisions concerning case and hearing management “…should address the particular needs of the individual concerned insofar as these are reasonable. The individual should be given an opportunity to express their needs. Expert evidence may be required.”
- The ETBB indicates an early ‘ground rules hearing’ at Chapter 5, involving a preliminary consideration of the procedure that the tribunal or court will adopt, tailored to the particular circumstances of the litigant.
- The tribunal must keep the adjustments needed under review.
The procedure in the current case was unfair. The tribunal should have been recognised the claimant had a mental health disability, and as soon as this emerged enquiries should have been made as to whether reaonable adjustments to the process were necessary. In particular an early ‘ground rules’ case management session should have been convened to meet the specific challenges of his condition.
The claimant’ representatives here had not requested adjustments to the process. However, the Court of Appeal said the duty is was on the tribunal to make its own decision in these matters. There were clear indications of observed agitation and frustration on the part of the claimant, and these should have put the tribunal on notice of the need to investigate the precise nature and diagnosis of his condition. “That said, this case highlights perhaps the need for there to be better training of both judiciary and the legal profession in the needs of the disabled.”
It was also a matter of great concern that the tribunal did not refer to the ETBB. It should be part of the culture of these hearings.
Last updated 22nd October, 2016