Home » Habib v Dave Whelan Sports: credibility of disabled claimant/witness

Habib v Dave Whelan Sports: credibility of disabled claimant/witness

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Last updated 30th June, 2024.

The claimant made various employment tribunal (ET) claims, which the ET rejected. The Employment Appeal Tribunal (EAT) said the ET had relied on behaviour which could arise from the claimant’s dyslexia as a reason to doubt her evidence, without considering the Equal Treatment Bench Book. The ET hearing was unfair, and there must be a retrial.

2023, Employment Appeal Tribunal (EAT). [2023] EAT 113. Full judgment www.bailii.org/uk/cases/UKEAT/2023/113.html (Also Employment Tribunal decision (gov.uk))

Summary

The claimant had dyslexia. She made various (non-disability) claims to an employment tribunal (ET).

The ET decided that apparent differences in her ability to follow questions and documents when she was giving evidence, compared with when her own Counsel was cross-examining others, indicated an element of performance and exaggeration, and made her evidence less credible. The claimant had given the ET an explanation for this difference related to her dyslexia. The ET rejected all her claims.

The EAT held that the ET hearing was unfair. The ET had relied on behaviour which could arise from her dyslexia as a reason to doubt her evidence. In the absence of evidence about her particular dyslexia, any explanation by the ET for its decision should have engaged squarely with the general guidance in the Equal Treatment Bench Book on dyslexia. There must be a retrial.

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Facts

The claimant had dyslexia, a type of specific learning difficulty. She also had migraines, and English was her third language.

She brought various claims to the employment tribunal (ET), including discrimination related to age, sex, and religion or belief, and as a part-time worker.

Facts: Preliminary ET hearing

A minute of a preliminary ET hearing said there had been issues with disclosure, and the claimant was dyslexic and English was her third language. In cross-examination she would need questions to be asked in a way that took into account her particular characteristics. She also had migraines and so might need breaks, particularly during cross-examination, to allow her to be able to concentrate and respond to questions. [§5]

The minute said no specific adjustments were requested at the preliminary hearing, but the ET conducting the final hearing “will be apprised of these matters and will take them into account during the final hearing to ensure that it is in keeping with the overriding objective and that a fair hearing takes place”. [§5]

The orders made following this preliminary hearing were to take account of the claimant’s difficulties as outlined in the minute. They provided for the sending of bundles and exchange of witness statements on dates well in advance of the final hearing [§5]. In fact this happened much later [§6].

Facts: Final ET hearing

In the final hearing, the ET refused various requests which the claimant later argued were failures to make reasonable adjustments: below Specific adjustments. As outlined there, she did have help from an assistant, R.

In its final decision, the ET said it was apparent to the ET – and remarked upon by the employer’s Counsel who put it to the claimant – that there was apparently a marked difference between her ability to follow questions and documents when she was at the witness table (she found this more difficult), compared with when she was sitting next to her Counsel while he cross-examined the employer’s witnesses – when she had no difficulty in reading documents and passing notes, whilst at the same time keeping up with the course of the evidence. The ET also said there were inconsistencies in her ability to understand particular words. [§7, 9]

The ET’s notes indicated that the claimant was asked about this difference in her ability when giving evidence compared with when giving instructions to her Counsel. She explained that it was the impact of pressure and the effects of dyslexia. She added that whilst giving evidence, her heart was racing. [§10]

The ET took into account that giving evidence is a stressful experience. However, although sitting next to her Counsel was not as stressful as giving evidence, it was still a relatively high-pressure environment. The ET accepted the employer’s submissions that the difference in her behaviour was so marked that it was “hard to escape the conclusion that there was an element of performance and exaggeration in the Claimant’s difficulties”. [§9]

Also, the ET found that in the hearing the claimant was reluctant to cooperate when things were not being done to her own agenda, which the employer submitted was consistent with how she behaved towards the employer and those who tried to manage her. The employer argued that her behaviour displayed elements of manipulation or attempting to manipulate dealings. [§9]

The ET decision said that having heard the claimant give evidence, the ET was drawn to the conclusion that on some issues it was clear she was not being entirely truthful, and on others her recollection was unreliable [§9].

The ET rejected all her claims.

Held by the EAT: The ET’s decision doubting the claimant’s credibility was unfair. The entire case must start afresh.

EAT: Reasonable adjustments by courts and tribunals

The EAT said that in Rackham v NHS Professionals there was no dispute that there was a duty on the ET to make reasonable adjustments for a disabled party. That case also demonstrated that ETs should make use of guidance in the Equal Treatment Bench Book (ETBB): below Equal Treatment Bench Book. [§13]

It was tolerably clear from case law (Anderson v Turning Point Eespro) that an ET should rely on a representative to inform as to appropriate adjustments. However, ultimately the duty fell on the ET to ensure that a hearing afforded a disabled individual effective access to justice. [§14, 15]

This must apply to the process of the hearing and, in the EAT’s judgment, must equally apply to the analysis and deliberation by the ET in reaching its conclusions. If that were not so, said the EAT, the effectiveness would be undermined. [§15, 32]

The EAT also considered case law on how critically the EAT should review ET decisions on adjustments. The EAT seems to say broadly that it can determine the issue itself (rather than just review whether the ET decision was irrational) if the approach taken by the ET meant that there was substantive unfairness because the participation of the claimant in the process meant that the trial was unfair. For that to be the case the failure to adjust must amount to a matter which is so fundamental that the absence of the adjustment means there cannot be a fair hearing. [§16]

If a hearing was found to be unfair, a Supreme Court decision made clear that the only outcome was a complete retrial. [§18]

EAT: Specific adjustments

The claimant argued that the ET failed to make three specific adjustments which would have enabled her to fully participate in the hearing, namely:

  • (i) Not allowing the claimant’s own bundles of documents to be adduced to the ET. The ET decided to work from the employer’s bundle of two lever-arch files, rather than the claimant’s five-file bundle with which she was familiar. However, the ET allowed the claimant to add relevant documents. [§§4, 6, 19]
    • (The claimant had stated that she needed to have each email in its full email trail, in order to be able to orientate herself in the document. The ET indicated that she could be taken to the email and given its context if necessary, and if she was unable to understand the email then she would need to let the ET know. [ET §7])
  • (ii) Refusing to allow the claimant the assistance of an intermediary, R. The claimant had asked the ET to allow this based on her dyslexia, relying on the difficulties that negotiating the bundle would present her, along with on occasion not being able to find the correct words to say. The ET had turned down her application as there was no medical or other expert evidence that she needed one. In fact, however, R sat next to the claimant’s Counsel and was permitted, during the claimant’s evidence, to indicate when the claimant did not understand a question or needed assistance. R later moved to sit next to the claimant while she gave evidence to assist in finding page numbers. [§4, 7]
  • (iii) Not allowing the claimant to be recalled to adduce medical records, at the end of day seven. [§4, 8]

The EAT did not consider that any of these three adjustments were reasons to conclude the ET had failed to make appropriate adjustments. The ET had accepted that support was required. Its attempts to provide support were reasonable in the circumstances. Before the ET and EAT, there was little evidence, medical or otherwise, as to the extent of the claimant’s difficulties, beyond the label of dyslexia being applied to her [§30].

Need for evidence

The EAT said:

30 …. An employment tribunal to comply with its duties to ensure a fair hearing must make an adjustment which would allow effective participation. In order to do that it must be able to identify the specific barriers which a condition or disability causes. In order to make such an identification it must have some evidence, which is not necessarily, but may be, expert evidence, to assist it in understanding the barriers. A tribunal can only operate on the evidence before it.
Emphasis added by me. Also at §17 the EAT cites Buckle v Ashford & St. Peter’s NHS Hospital Trust (bailii.org), EAT, 2021 saying there needs to be evidence that the adjustment would alleviate the disadvantage caused by the disability.

The EAT considered that adjustments and evidence had not been addressed because the claimant did not have someone representing her consistently [§31, 1]. The EAT said:

“31. … where there is an unrepresented party, or a party with intermittent representation, it would be useful for the case management order to make clear that, if the status of a witness, their condition or disability is something that will require adjustments to be made to the usual procedure, that evidence will need to be produced. That evidence could, for instance, take the form of part of the witness statement of the person for whom the adjustments are necessary or perhaps documentary disclosure of medical information. It is not necessary for an expert evidence order in all cases.”

However, said the EAT, if there was an obvious difficulty demonstrated by a witness, there was still an onus on the ET to explore the difficulty [§32, Anderson case above]. This led the EAT to considering the approach the ET took to the credibility of the claimant …

EAT: Credibility of claimant

Claimant’s argument

The claimant’s Counsel argued that the ET not only failed to inform the claimant as advised in the Equal Treatment Bench Book (below) that “misunderstandings on their part will not be treated as evasiveness and inconsistencies will not be regarded as indications of untruthfulness.” but actually used the fact that the claimant did not perform as expected to impugn the claimant’s credibility. The claimant gave dyslexia as an explanation for the differences put to her, but there was no indication from the ET judgment that it considered her response, and in particular that the ET approached her response in the light of the ETTB guidance. [§19, 23]

Equal Treatment Bench Book (ETBB)

The EAT considered Presidential Guidance for ETs on vulnerable witnesses. Among other things, this guidance discussed the legal basis requiring adjustments to be made, and pointed to the importance of paying regard to the Equal Treatment Bench Book. [§11]

The EAT also reviewed what the ETBB itself said about dyslexia, including: [§12]

“People with SpLDs [ie specific learning difficulties such as dyslexia] will be concerned about how their behaviour might be perceived: inconsistencies could imply untruthfulness. Failure to grasp the point of a question could come across as evasive. Lack of eye contact could be misinterpreted as being ‘shifty’ and an over-loud voice might be regarded as aggressive. The overriding worry is that a loss of credibility occurs when they do not ‘perform’ as expected.”

It was of particular note, said the EAT, that the ETBB set out the following as to the reassurance that should be provided to someone with a specific learning difficulty: [§12]

“Misunderstandings on their part will not be treated as evasiveness and inconsistencies will not be regarded as indications of untruthfulness.”

ET saw behaviour which might arise from dyslexia as impugning her credibility

Having discussed the need for evidence, above, the EAT said that, however, if there is an obvious difficulty demonstrated by a witness, there is still an onus on the ET to explore the difficulty [see Anderson above]. What caused the EAT the greatest concern in this case was the approach the ET took to the credibility of the claimant. As the EAT had said at §15, a fair hearing includes the approach taken to deliberations and conclusions. [§32]

The ET had some evidence of a potential disability, at the very least from the claimant’s assertion that she was dyslexic. A preliminary hearing had set out the need to make allowances for it. In proceedings, the claimant had indicated that her dyslexia was the specific cause of her acting in particular ways. The ET had accepted to some extent that there were specific difficulties, because it allowed R to assist her with locating pages. This put an onus on the ET to consider whether the dyslexia was something that might require further adjustments. [§32]

That was of particular importance as regards whether it was appropriate to apply the usual standards to witnesses, given the warnings in the ETBB, above. If the ET considered that the existence of the condition was in doubt, it could have sought evidence. If the ET did not have those doubts, then in the absence of medical evidence on the condition, the ET should at the very least have consulted the ETBB. [§32]

The EAT said the lack of any reference in the ET’s reasoning to the Presidential Guidance or ETBB was not of itself specifically important. Also the ET’s failure to set out anything resembling the type of analysis that should be applied to a witness with a specific learning difficulty (as would be expected if the ET had applied that analysis) would not, taken alone, be sufficient to impugn the fairness of a hearing. [§33]

However this case went beyond that. The ET appeared to rely on specific elements of the way in which the claimant’s evidence was given, as a basis for deciding and impugning her credibility. There was always a danger, said the EAT, in relying (simply) on demeanour as a guide to whether evidence is true. Cultural and other differences could make the reliance on such factors unreliable. This was all the more important if the ET was aware of a condition that might affect demeanour or the manner in which evidence was given. Over seven paragraphs of its decision, the ET made explicit and detailed findings impugning the claimant’s credibility based on her behaviour during the hearing, with no reference to the ETBB. This was of particular importance when the bulk of this case was about which of two witnesses was telling the truth about particular events. [§33]

The ET had said the claimant displayed an inconsistency in how well she could follow proceedings, and in her ability to understand particular words (above Facts: Final ET hearing). The ET decided that this difference in behaviour was so marked that there was an element of performance and exaggeration in her difficulties. The ET went on to consider that this was similar to the employer’s descriptions of the claimant. The EAT said that given what the ETBB said about dyslexia, it would appear that the ET was relying on the very matters that might arise from the condition as reasons to doubt her evidence. The ET would be entitled to come to such a conclusion, but the EAT would expect the ET to analyse and explain it. [§34]

Lack of sufficient reasoning by ET

The claimant was never made aware that the existence or extent of her dyslexia was in issue (its existence was accepted in the preliminary hearing). Without giving the claimant an opportunity to present evidence about dyslexia, the ET could not decide whether she was dyslexic. Further, without evidence, the ET could not determine its specific effects on her. In those circumstances, the ET would be reliant on the broad general guidance in the ETBB. [§35]

On that basis, said the EAT, any explanation by the ET as to why it had come to its conclusions should engage squarely with that general guidance in the ETBB. There was no such engagement or explanation. The ET decision was therefore not “Meek-compliant“, ie it did not adequately describe why her claims were dismissed. [§35]

More fundamentally, ET hearing was unfair

The EAT also held that the ET hearing, by approaching the matter without reference to the ETBB and the Presidential Guidance, was unfair. The EAT said: “Without, the ET approaching deliberation making that adjustment to its analysis there is such a fundamental failing as to make the hearing unfair.” Further, the claimant would never have been made aware of the concerns of the ET as to the extent of the effects of dyslexia until the judgment. [§35]

A Supreme Court decision had made clear that there was only one outcome if a hearing was found to be unfair, namely a retrial. Therefore the entire case must start afresh. Lord Reed had observed that a judgment which results from an unfair trial is “written in water”. [§18, 36]

My comments

Mistaking effects of a stammer for dishonesty is a real issue, as it evidently is for dyslexia. This case should be helpful. However, I have not yet updated Appearing in court with a stammer>Mistaking stammering for dishonesty to consider implications of this case.

There is an analysis of the case and lessons for courts at Habib: the ETBB strikes back! (lag.org.uk), by barrister John Horan.

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