The EAT held that employment tribunals are under an obligation to make reasonable adjustments to accommodate disabled claimants, but sufficient adjustments had been made in the present case.
Employment Appeal Tribunal, 2015. Full judgment: bailii.org.
The claimant had Asperger’s Syndrome. He had indicated he agreed to certain adjustments to accommodate his Asperger’s, including a waiting room without other claiments in, questions being simplified, and judge and counsel taking account of the Equal Treatment Bench Book. He was also given a note of questions in advance.
The EAT held that employment tribunals are under an obligation to make reasonable adjustments to accommodate disabled claimants (though not necessarily under the Equality Act). However sufficient adjustments had been made in the present case. An expert report might be appropriate on what adjustments are required, but in this case there was sufficient evidence without one.
By way of general guidance, the EAT said (a) courts should focus on adjustments tailored to the individual claimant (since claimants have different needs) rather than adopting a generic approach for those with a particular disability, (b) courts should not normally second-guess decisions of the disabled individual, and (c) an initial ‘ground rules hearing’ on adjustments should be considered, at least if the question of disability is not seriously disputed, though the results of that are not set in stone. More detail below under Guidance.
The case is helpful in making clear that tribunals should give serious consideration to adjustments required, perhaps in a ‘ground rules hearing’, and that getting an expert report is a possibility where required.
Also the case emphasises the importance of the views of the disabled person. However a downside of this is that if one agrees a set of adjustments (as in this case) it may be difficult to argue later that they are not sufficient.
The case in more detail:
The claimant had Asperger’s syndrome, and was claiming discrimination and unfair dismissal. A GP report said the claimant could attend the employment tribunal hearings with the reasonable adjustments which had already been suggested by the claimant.
It was later explained to the tribunal that the claimant found it difficult to answer questions just after they were asked – he needed to be given time to collect his thoughts and then answer. There was evidence that the claimant had participated in a social security tribunal hearing where he required a number of reasonable adjustments: in particular that extra time be allowed for answering questions, and that questions should be direct, simple and to the point. The claimant also visited the social security tribunal venue the day before the hearing so he could familiarise himself with the process.
The employment tribunal judge ordered that an appropriate expert report (not a GP’s report) be obtained on whether the claimant had a disability within the Equality Act, and what reasonable adjustments were required for the employment tribunal hearing. However the employer was not willing to pay the £3000 it would cost. Rather than the tribunal paying, the tribunal decided that the claimant’s medical records should be released and an expert report could be commissioned afterwards if it was still felt necessary.,
In the light of adjustments previously requested by the tribunal, and apparently endorsed by the GP, the employer proposed that the tribunal order the following adjustments be made, and the claimant replied “I have no objection”:
- the claimant be permitted to wait in a waiting room which does not accommodate other claimants;
- the judge and counsel simplify questions where required to the claimant;
- where clarification of questions is necessary, they be put through the judge to the claimant;
- the judge and counsel to have with them the relevant section providing guidance for questioning disabled witnesses from the Equal Treatment Bench Book.
In addition, before the hearing began, counsel for the employer offered the claimant a note of the questions she proposed to ask – about 100 of them – because she noted that the Equal Treatment Bench Book said it might be helpful for a witness to have questions set out in writing in advance.
The claimant then sought an adjournment of a hearing, arguing that a medical expert’s report had not been obtained, and that the claimant should be allowed to answer the questions in writing so that he did not have to answer them orally. The tribunal refused this, and the claimant appealed.
The claimant argued that:
- the employment tribunal had not complied with the Equal Treatment Bench Book, on requesting further documentation and arranging a special directions hearing on adjustments;
- the tribunal was bound to make reasonable adjustments under the UN Convention on Rights of Persons with Disabilities (adopted as an additional EU treaty), and this Convention was not sufficiently respected by employment tribunals; and
- where as here the need for an expert report had been identified, the tribunal should at least request the tribunal service to obtain one at the expense of the state if (as here) the claimant could not afford it.
Held: the tribunal’s decision was upheld. Sufficient reasonable adjustments were made. An expert report was not required in this case in the light of the other evidence available.
Duty to make adjustments
It was clear that a tribunal has a duty as a public body to make reasonable adjustments to accommodate the disabilities of claimants. The particular route by which the tribunal has this obligation rests was unimportant. It may be, as the claimant submitted, through the operation of the United Nations Convention. It may be by operation of the Equal Treatment Directive (sic) or it may arise simply as an expression of common-law fairness.
The purpose of making an adjustment was to overcome barriers so far as access to the court is concerned, in particular to enable a party to give the full and proper account that they would wish to give to the tribunal, as best they can be helped to give it. Practical guidance as to the way in which the relevant court should achieve this is given by the Equal Treatment Bench Book.
Were adjustments adequately considered in this case?
The EAT considered was there any substantial unfairness to the claimant in the event. It had to bear in mind that the case was one in which there were two parties, the adjustment had to be reasonable given the balance that it was necessary to make between the parties, to ensure fairness to both of them.
In many cases, if not most, a disabled person would be the person best able to describe to a court or to others the effects of that disability on them and what might be done in a particular situation to alleviate it. His autonomy and integrity as a human being would require his views to be respected. Here the claimant had agreed to the adjustments proposed by the employer, after ealier requesting very similar adjustments. The tribunal was entitled to regard his agreement as evidence that the adjustments were appropriate. It was also entitled to take into account the GP’s endorsement of those adjustments.
As to whether an expert report was required, the EAT said that since the judge had first raised the need for this, things had moved on. Whether the claimant had a disability was no longer an issue, and adjustments had been agreed between the parties. There was no particular reason to think an expert would identify an adjustment which it was reasonable to have to make but which no-one else in the case, especially the claimant, had previously spotted. In many cases a tribunal may have to seek expert input from an appropriate expert, but this was a case in which there was already a substantial amount of evidence, including that given by the agreement of the parties themselves, the claimant’s own expression of adjustments, and evidence that the claimant had with similar adjustments successfully negotiated a hearing before the social security tribunal. There was thus considerable material to support the judge’s conclusion that, given in particular that the adjustments had the support of the general practitioner, they would be capable of securing a fair trial before him.
The EAT said the tribunal should keep the adjustments under review, including during the hearing. However, here the EAT (at least its lay members) were clear that the record was consistent with a tribunal judge seeking to ensure that the matter was dealt with with reasonable speed and with sensitivity.
The EAT gave three points of guidance that may be of use to future cases:
- Each case is that of an individual, whose needs will differ from those of others, to some extent and perhaps to a great extent. What is reasonable for a tribunal to have to do must be tailored not to some general idea of what a person with that disability (or disabilities generally) needs, but what the individual before the tribunal requires.
- Considerable value should be placed upon the integrity and autonomy of the individual. If a person entitled to make a decision affecting the conduct of their case makes that decision, it is not in general for any court to second-guess their decision and to make it in a manner which patronises that person. There may be exceptions to that, though they may be rare. Generally, the EAT emphasised the very considerable importance of recognising that those who have disabilities are fully entitled to have their voice listened to, whatever it is they may be saying.
- Emphasis might wish to be given in the tribunal sphere to what is covered in the Equal Treatment Bench Book in criminal cases, in particular where it describes ground rules hearings. The EAT said: “The suggestion in the tribunal context is that there might in an appropriate case be a preliminary consideration of the procedure that the tribunal should adopt in order best to establish the rights of the parties before it. It may for instance consider the ground rules that it is appropriate to lay down for the hearing and the adjustments that it might be necessary to make. This may not be possible if the question of disability is seriously in dispute between the parties, but where it is not it is very often likely to be of advantage. It should not, however, be seen as a step that once taken is set in stone, since in the way of the world the condition or position of the parties may change, but … it provides something of a baseline from which other applications and decisions may be considered.” The EAT commented that although the tribunal in this case did not call what it did a preliminary ground rules hearing, it effectively held one. Finally, there is a considerable value in taking these steps quickly. Speed is important in any case, but may be particularly so for those with disabilities.