A reminder from the EAT that Employment Tribunals must have regard to disabilities of litigants in person during case management stages
Mr B King v Gemalto Thales UK Ltd 2024 EAT 34 (8 March 2024)
The Background
Mr King (“the Claimant”) started working for Thales (“the Respondent”) in December 1999. The Claimant is vulnerable with mental health conditions. He brought an unfair dismissal claim to the Employment Tribunal which was dismissed due to it being submitted out of time. The Claimant brought a further separate claim alleging sex discrimination. A Preliminary Hearing was held to consider whether the second claim also included a claim of disability discrimination and whether the claim of sex discrimination was an abuse of process.
At first instance an Employment Judge concluded that the first claim did not include a claim of disability discrimination. Nonetheless, they upheld the Respondent’s abuse of process argument which resulted in the dismissal of the sex discrimination claim and refusal of the application to amend the second claim to add disability discrimination.
The Law
The EAT, presided by His Honour Judge James Tayler, considered several legal principles as part of the appeal. For the purposes of this article, it is pertinent to note paragraph 58 of the Judgment as follows:
“58. An Employment Tribunal may have to take account of learning difficulties and mental health issues that make a witness vulnerable in two principle ways:
58.1. the Employment Tribunal may have to adjust its procedures to permit a witness to give his or her best evidence. A failure to make an adjustment could possibly be so serious as to render the hearing unfair
58.2. it may be necessary for the Employment Tribunal to take vulnerability into account when assessing the evidence of a witness. A failure to do so could possibly:
58.2.1. be so serious that the hearing is unfair
58.2.2. involve a failure of the Employment Tribunal to direct itself to the relevant law
58.2.3. undermine the Employment Tribunal’s analysis of the evidence to such an extent that a decision might be perverse, even taking account of the high threshold of showing perversity – this might be in connection with any other errors of analysis of the evidence or application of the appropriate legal tests”
Furthermore, the EAT recorded:
“Although the legal duty to make reasonable adjustments pursuant to the Equality Act 2010 does not apply to the employment tribunal, it is well established that the tribunal should make such adjustments as are necessary to ensure a fair hearing: Heal v University of Oxford [2020] ICR 1294, at paragraph 18.”
Finding
The EAT found that in undertaking the broad, merits-based assessment, including the analysis of the Claimant’s evidence, the first instance Judge was required to take account of The Claimant’s vulnerability. Emphasising that “proper allowance should have been given to Mr King’s vulnerability when assessing his evidence” at paragraph 87. The EAT remitted the matter to a new tribunal for a fresh assessment, tasking it with considering all relevant factors, including the precise nature of the Claimant’s claims, the reasons for not bringing those claims earlier, the impact of his mental health conditions, and the possible prejudice to the Respondent.
Comment
This case acts as a helpful reminder of the importance in having regard to disabilities of litigants in person during case management stages.
Employment Tribunals are obliged to ensure substantive fairness, allowing parties to effectively participate throughout all stages of the process. In utilising judicial discretion, the Tribunals must weigh in the balance of fairness and access to justice for all parties including vulnerabilities of individuals. It follows that at a final hearing witnesses should also be afforded the opportunity to provide reliable evidence.
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