Factual and Procedural Background
This appeal arises from a decision of an Employment Tribunal in Norwich, where Employment Judge Postle presided alone at a Preliminary Hearing with reasons given on 29 December 2014. The case concerned claims of unfair dismissal and disability discrimination brought by the Plaintiff, who suffered from Asperger's syndrome and anxiety. The Tribunal found the claims had no reasonable prospect of success, were out of time, and the Plaintiff lacked sufficient continuity of employment, having been employed through an agency to provide services to a local NHS Trust. The discrimination alleged was not attributable to the Plaintiff's direct employer but rather to the end-user Trust, with whom the Plaintiff had no contractual relationship.
The Plaintiff contended that the Tribunal failed in its duty to make reasonable adjustments to ensure a fair hearing, particularly by not instructing an expert to assess the adjustments required under Article 13(1) of the United Nations Convention on the Rights of Persons with Disabilities. The Tribunal had made several adjustments, including allowing the Plaintiff to wait separately from other claimants, simplifying questions, and directing questions through the Judge for clarity. The Plaintiff’s representatives included counsel and solicitors acting pro bono, while the Respondent was represented by experienced counsel.
Procedurally, the Plaintiff raised his disability early, and the Tribunal ordered a medical report from his general practitioner (GP) addressing his condition and reasonable adjustments. The GP supported certain adjustments proposed by the Plaintiff. The Tribunal later ordered a more detailed expert medical report, but the Respondent declined to pay for it due to cost concerns, proposing instead the release of medical records. The Tribunal considered this a proportionate approach. Prior to the hearing, the Respondent proposed specific adjustments, which the Plaintiff accepted. At the hearing, the Plaintiff sought an adjournment to obtain the expert report, which was refused, and the Tribunal proceeded with the hearing making the agreed adjustments.
Legal Issues Presented
- Whether the Employment Tribunal breached its common law or statutory duty to make reasonable adjustments for the Plaintiff’s disability to secure a fair hearing.
- Whether the Tribunal erred in law by failing to instruct an expert medical report at public expense to determine the reasonable adjustments required.
- The appropriate standard of review for the Tribunal’s decision to refuse an adjournment and proceed with the hearing under the adjustments made.
Arguments of the Parties
Appellant's Arguments
- The Tribunal failed to comply with its duty to make reasonable adjustments by not instructing an expert to assess the adjustments needed under the United Nations Convention on the Rights of Persons with Disabilities and the Equality Act 2010.
- The failure to obtain an expert report resulted in an unfair hearing contrary to Article 6 of the European Convention on Human Rights, denying the Plaintiff effective access to justice.
- The Tribunal should have adjourned the hearing to enable the expert report to be obtained, especially given the Plaintiff’s inability to fund it personally.
- The Equal Treatment Bench Book provisions, particularly in Chapter 7 addressing mental disabilities, were not properly applied.
- Procedural fairness requires a reviewing court to determine whether a fair procedure was followed, citing Osborn v Parole Board.
Respondent's Arguments
- The decision to refuse the adjournment was a case management decision subject to Wednesbury unreasonableness standard of review, citing O'Cathail v Transport for London.
- The adjustments proposed and accepted by the Plaintiff, supported by his GP, were reasonable and sufficient to ensure a fair hearing.
- The cost of an expert report was disproportionate, and the release of medical records was a sensible and proportionate alternative.
- The hearing should proceed openly and in public, with no requirement for the Plaintiff to answer questions in writing outside the hearing.
- The Tribunal acted in accordance with the Equal Treatment Bench Book, and no error of law was committed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| AWG Group Ltd v Morrison [2006] EWCA Civ 6 |
Recognition that impartiality and fairness are essential characteristics of a hearing, with convenience secondary. |
Supported the principle that an unfair hearing is no proper hearing, framing the appeal’s fundamental fairness issue. |
| Osborn v Parole Board [2013] UKSC 61 |
Common law procedural fairness requires courts to assess whether a fair procedure was followed. |
Appellant relied on this to argue the Tribunal’s failure to ensure fairness was an error of law requiring appellate review. |
| Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 |
Standard of review for administrative decisions is Wednesbury unreasonableness. |
Respondent argued the Tribunal’s refusal to adjourn was a case management decision subject to this deferential standard. |
| O'Cathail v Transport for London [2013] ICR 614 |
Employment Tribunal case management decisions are reviewable only for legal error or perversity, applying Wednesbury standard. |
Court adopted this standard for reviewing the Tribunal’s refusal to adjourn, rejecting a broader fairness review. |
| Terluk v Berezovsky [2010] EWCA Civ 1345 |
Higher court may set aside decisions if wrong or unjust, but Employment Tribunal appeals are limited to points of law. |
Distinguished from Employment Tribunal appeals, supporting limited scope of review. |
| Hak v St Christopher's Fellowship UKEAT/0446/14 |
Assessment of interpreter needs must balance fairness and reasonableness, ensuring reasonable opportunity to present case. |
Used by the Court to analogise the need for reasonable adjustments for disabilities, emphasizing equality of arms. |
| AB v Slovakia [Application 41784/98] |
European Court of Human Rights: No absolute right to interpreter, but a reasonable opportunity to present the case. |
Supported the principle that procedural fairness requires reasonable accommodations, not absolute rights. |
| R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 |
Proportionality approach to reviewing decisions affecting fundamental rights. |
Informed the Court’s consideration of the appropriate intensity of review regarding the Tribunal’s adjustments and adjournment decision. |
| Pye v Queen Mary University of London UKEAT/0151/15 |
Employment Tribunal appeals adopt Wednesbury approach to case management decisions. |
Confirmed the applicable standard of review for the Tribunal’s refusal to adjourn in this case. |
Court's Reasoning and Analysis
The Court acknowledged the undisputed duty of the Tribunal to make reasonable adjustments for disabilities under common law, the Equality Act 2010, and the United Nations Convention on the Rights of Persons with Disabilities. The purpose of adjustments is to overcome barriers to effective access to justice and ensure the party can participate fully and fairly.
In assessing the Tribunal’s conduct, the Court distinguished between the duty to make reasonable adjustments and the discretion exercised in managing the hearing. It accepted that the refusal to adjourn was a case management decision reviewable only for legal error or unreasonableness under the Wednesbury standard, as established in O'Cathail and related authorities.
The Court found that the Tribunal had proactively sought medical evidence and made adjustments agreed by the Plaintiff and endorsed by his GP, including separate waiting arrangements and simplified questioning. The Plaintiff had not renewed the request for an expert report prior to the hearing, and the medical records sufficiently addressed the disability issue.
The offer by the Respondent to provide questions in writing in advance, accepted by the Plaintiff, was a further reasonable adjustment. The Tribunal’s rejection of the suggestion that the Plaintiff answer questions in writing outside the hearing was consistent with the principle of public hearings under Article 6 ECHR.
The Court emphasized the importance of respecting the Plaintiff’s autonomy and integrity in deciding what adjustments were necessary, noting that the Plaintiff had actively participated in agreeing to the adjustments. The Tribunal’s approach was found to be reasonable and proportionate, balancing fairness to both parties.
Consequently, the Court concluded there was no error of law in the Tribunal’s approach, and no substantial unfairness to the Plaintiff in the hearing process.
Holding and Implications
The Court DISMISSED the appeal.
The direct effect is that the Employment Tribunal's decision to proceed with the hearing under the agreed reasonable adjustments without an expert medical report was upheld. No new precedent was established beyond reaffirming the application of established standards regarding reasonable adjustments and case management discretion in Employment Tribunals. The judgment underscores the importance of individualized assessment of adjustments and respect for the autonomy of disabled parties in litigation.