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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> J W Rackham v NHS Professionals Ltd [2015] UKEAT 0110_15_1612 (16 December 2015) URL: https://www.bailii.org/uk/cases/UKEAT/2015/0110_15_1612.html Cite as: [2015] UKEAT 110_15_1612, [2015] UKEAT 0110_15_1612 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR I EZEKIEL
MR H SINGH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JOHN HORAN (of Counsel) and MR NATHAN ROBERTS (of Counsel) Instructed by: RadcliffesLeBrasseur 85 Fleet Street London EC4Y 1AE |
For the Respondent | MISS NATASHA JOFFE (of Counsel) Instructed by: DAC Beachcroft LLP 100 Fetter Lane London EC4A 1BN |
SUMMARY
PRACTICE AND PROCEDURE - Bias, misconduct and procedural irregularity
DISABILITY DISCRIMINATION
The Claimant suffered from Asperger's syndrome. A Judge decided at the second of three Preliminary Hearings that there should be a report from an expert, not a GP, as to the nature of his disability and adjustments it would be reasonable to make to enable participation in a third Preliminary Hearing. The parties could, or would, not fund it. Accordingly, the Judge thought it proportionate as a first step to obtain the medical records of the Claimant. They were provided. The parties then agreed between themselves what adjustments would be needed for the hearing. At the hearing, as an additional adjustment prompted by the Equal Treatment Bench Book, counsel for the Respondent offered a written list of the questions she intended to ask in cross-examination. Having failed to secure an amendment to the claim, the Claimant then applied to answer the questions in writing, and at home, and sought a postponement to obtain an expert report on appropriate adjustments. The application was refused.
Held: The duty to make reasonable adjustments, for the purpose of ensuring access to and participation in the proceedings, was undisputed. The question was whether there was an error of law in providing inadequate adjustments by failing to consider what an expert might say. Whatever approach was taken (whether assessing fairness, review, or a hybrid, proportional approach as considered in R (Daly) v Secretary of State for the Home Department), there was no error of law here. The Judge had considerable material on the basis of which he could conclude that the adjustments proposed would be reasonable so as to ensure that the hearing would be fair, which included the agreement of the parties: the Claimant's agreement to the measures proposed should be respected since he had autonomy to make it. There was nothing to suggest the measures were inappropriate. Unfairness had to be judged by reference to both parties, to proportionality and with a view to expedition, and the judgment of the Judge, if not conclusive, was entitled at the very least to considerable weight. There was no failure to follow the Equal Treatment Bench Book.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
The Facts
"1.4. Whether, and if so how, the Claimant will be able to participate in an Employment Tribunal hearing that will require him to be at the Employment Tribunal from approximately 9.30 a.m. - 4.30 p.m. with one hour break for lunch and to be in an Employment Tribunal with the Respondent's witnesses and to be cross examined by the Respondent's representative.
1.5. Any reasonable adjustments that could be made by the Employment Tribunal to assist the Claimant."
The Claimant was also invited to take various steps.
"He can attend the employment tribunal with the reasonable adjustments already suggested by him."
"… If these adjustments are possible I feel I will be able to be present for the whole day with support."
"6. … At the second conference between Mr Rackham and Counsel, we determined that the only way to take instructions would be to send Mr Rackham away with a short list of questions, give him time to collect his thoughts and await his response via email. This has worked well thus far …" (Original emphasis)
"9. … Mr Rackham required a number of reasonable adjustments so that he was able to give his evidence to the Tribunal. In particular, we asked that extra time was allowed for answering questions and that questions should be direct, simple and to the point. Mr Rackham also visited the Tribunal venue the day before the hearing so that he could familiarise himself with the process."
"2. The Claimant shall obtain an appropriate experts [sic] medical report (not a GP's report) on:
a) Whether the Claimant has a recognised disability within the meaning and definition of the Equality Act 2010 and such medical expert shall have his attention drawn to the guidelines in relation to whether or not an individual satisfies the definition of a disability.
b) Such report shall set out precisely what reasonable adjustments the Claimant will require in order for him to attend a hearing at a Tribunal for one day, during the course of which he will be required to give evidence, be cross examined and sit with his counsel during the course of the hearing, at the same time the expert shall advise what further reasonable adjustments the Claimant would require for longer periods if the matter proceeds to a full merits hearing. Again such expert shall have his attention drawn to the relevant guidance contained in the Judicial Equal Treatment Bench book."
"7. Upon receipt of the medical report there shall be a short telephone conference to discuss the suggested reasonable adjustments considered necessary for the Preliminary Hearing."
"… Employment Judge Postle is of the view having regard to overriding objectives and dealing with matters proportionately particularly as the claimant is unable to pay the costs of a medical report, that the release of the claimant's medical records is a sensible and proportionate way forward. Particularly if at least the issue of the claimant's disability is resolved. Thereafter if still felt necessary a report can be commissioned from a suitable expert dealing with reasonable adjustments. Please confirm this is agreed."
"… the Claimant himself requested a number of adjustments in the document headed "Skeleton Argument" emailed on 10 January 2014, which his General Practitioner appears to have approved by letter of 13 December 2013 (both enclosed). [We interpose to say those are the documents we have already referred to above.]
Given the above, with a view to facilitating the Preliminary Hearing, we write to propose that the Tribunal order the following adjustments be made:
? 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."
"32. Employment Judge Postle can see no medical reason or any other reason why the hearing cannot proceed today if Counsel is given the chance to go through the questions with the Claimant and to take further instructions on the questions proposed by the Respondents [sic], and thus Employment Judge Postle was considering adjourning for one hour to allow this to happen."
"42. … simply no medical evidence that the adjustments suggested by the Claimant, agreed by his GP and again agreed by the Claimant, would not be adequate for him to participate in this preliminary hearing."
We have interpreted this with the assistance of counsel's submissions, by removing the double negative, as being to the effect that adjustments had been suggested, had been agreed and there was nothing to show that they would not be sufficient as the GP had asserted, and as the Claimant himself had been content to accept until the morning of the hearing in August itself.
The Appeal
"19. If a disability is indicated on court or tribunal pro-formas both the administration and the judiciary should act on this information, requesting further documentation or arranging a directions hearing to consider requirements arising out of special needs. There may be a duty to make reasonable adjustments under the Equality Act 2010."
"20. Rather than making assumptions based on generic information or knowledge of previous cases, decisions concerning case and hearing management should address the particular needs of the individual concerned insofar as these are reasonable. The individual should be consulted or given an opportunity to express their needs. Expert evidence may be required."
Discussion
"1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff."
"The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity."
"44. … A question of law only arises … when there is an error of legal principle in the approach or perversity in the outcome. …"
"45. Overall fairness to both parties is always the overriding objective. The assessment of fairness must be made in the round. It is not necessarily pre-determined by the situation of one of the parties …" (Mummery LJ's emphasis)
He came back at paragraph 47 to note that there were two sides to a trial, which should be as fair as possible to both sides.
"41. A scenario which sits between these two is one in which the litigant has some command of language rather than lacking it altogether, but wishes to be assisted by an interpreter. Here, an assessment of his need seen in the context of achieving justice must be made by the Tribunal upon all the available information. The principle is that which was articulated by [counsel for the Appellant]: to ensure fairness, by providing equality of arms as near as may reasonably be achieved. It must, however, be remembered that Article 6 itself does not speak directly of a party having an absolute right to the services of an interpreter. AB v Slovakia [Application 41784/98, made final on 4 June 2003, of the European Court of Human Rights] speaks of affording a reasonable opportunity to present the case. Natural justice does not guarantee the party an absolute right to present a case in court, but (in context) a reasonable opportunity to do so. …" (Original emphasis)
"27. … The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. …"
"28. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. …"
Guidance