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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: http://www.bailii.org/uk/cases/UKEAT/2015/0110_15_1612.html
Cite as: [2015] UKEAT 0110_15_1612

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BAILII case number: [2015] UKEAT 0110_15_1612
Appeal No. UKEAT/0110/15

EMPLOYMENT APPEAL TRIBUNAL
             At the Tribunal
             On 15 & 16 December 2015

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

MR I EZEKIEL

MR H SINGH



MR J W RACKHAM APPELLANT

NHS PROFESSIONALS LIMITED RESPONDENT


Transcript of Proceedings

JUDGMENT

© Copyright 2015


    APPEARANCES

     

    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

  1. This appeal, from the decision of an Employment Tribunal in Norwich (Employment Judge Postle sitting on his own at a Preliminary Hearing) Reasons for which were given on 29 December 2014, raises questions as to the fairness of a hearing relating to a person with a disability.
  2. The Tribunal held that claims made for unfair dismissal and in respect of discrimination had no reasonable prospect of success and were out of time, and in neither of those cases subject to the test of reasonable practicability for the expiry of time nor, in those claims subject to whether it would be just and equitable to extend time, did the Tribunal think it appropriate to do so. In addition, it concluded that the Claimant did not have sufficient continuity of employment, since he had been employed through an agency, NHS Professionals Ltd, to provide services to a local NHS Trust on an assignment basis, and the discrimination about which he complained was not to be attributed to his only employer: if it was discrimination, it was committed by a servant or agent of the NHS Trust and he had no contract so as to make him either an employee or a worker of the Trust, which was the end-user of his services and not his employer. There was ample, indeed compelling, evidence to support those conclusions, assuming that the evidence had been considered fairly.
  3. The Claimant, who was in his mid-30s, suffered from autism at the high end and had been diagnosed as having the Asperger's form of autism. In addition, he suffered from anxiety, which could be severe at times. The fact that he had autism (Asperger's) was asserted by him in his claim form. The Respondent agreed that he did but did not accept at that stage that he was a disabled person within the meaning of the Equality Act 2010. His Asperger's was of a mild form.
  4. The Tribunal purported to make a number of adjustments, which we shall describe, in order to ensure the fairness of the hearing so far as the Claimant was concerned. The adequacy of those adjustments is in dispute before us. The essential case for the Claimant was put by Mr John Horan, who, together with Mr Nathan Roberts of counsel, appears under the auspices of the Bar pro bono scheme, supported also without remuneration by LeBrasseur as solicitors. We could not begin this Judgment without acknowledging the debt that we have to him and to them for acting in that way, and we should also say at this stage that we have been particularly assisted as well by the considerate, thoughtful, reflective and contributive submissions made on behalf of the Respondent by Miss Joffe, whose conduct throughout this case, as it seems to us, has been an exemplar of that to which barristers should aspire.
  5. The error that the Claimant asserted was that the Judge had been in breach of common law or the statutory duty applying to make reasonable adjustments in failing to consider that the correct course at the hearing before him was that the Tribunal should instruct an expert, and pay out of public funds for that expert to report on the way in which the duties arising under Article 13(1) of the United Nations Convention on the Rights of Persons with Disabilities should be satisfied. If the Claimant needed reasonable accommodation, what should it be? Without making that enquiry, the Tribunal were unsighted and in error of law such that the proceedings were conducted unfairly so far as he was concerned.
  6. Though we have commented upon the nature of the case itself, the merits, however compelling in favour of the decision the Judge reached, form no part of our consideration. That is because a party is entitled to a fair hearing before an impartial Tribunal. That the impartiality of the Tribunal is an essential characteristic of a hearing was recognised by Mummery LJ in AWG Group Ltd v Morrison [2006] EWCA Civ 6. He recognised that convenience has to give second place to impartiality. The same, we think, is to be said of fairness as of impartiality, because it is what any litigant is entitled to expect from a court hearing, and an unfair hearing is no proper hearing at all.
  7. The Facts

  8. Before we turn to the law, we shall look at the facts of this particular case relevant to fairness. The Tribunal conveniently set most of them out in its Judgment. In his ET1 the Claimant had asserted that his disability with Asperger's and other mental health related problems had made it impossible for him to act and to launch Tribunal proceedings timeously. He therefore raised his condition at the outset. A case management hearing was called before Employment Judge Laidler at Norwich on 14 November 2013. She had been allocated two cases, one of which was his. The first was one she thought would be relatively quick to hear. Unfortunately, it was not. By the time she had concluded it, after some three hours, the Claimant had left the building. He had a friend present who explained why that was. He had become too stressed and anxious to remain. He had also been upset by having to be in the Claimants' waiting room together with others. That was due to the lighting and to the colours on the wall.
  9. The Judge ordered that a report be obtained from the Claimant's general practitioner that dealt with the nature of his condition, how long it had and might be expected to last, the effect it had on his day-to-day activities and, significantly for present purposes:
  10. "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.

  11. The general practitioner did provide a report, on 13 December 2013. He set out the diagnosis. As to reasonable adjustments, he said:
  12. "He can attend the employment tribunal with the reasonable adjustments already suggested by him."

  13. These adjustments were added to by the Claimant, who accepted the general practitioner's view. He said in a skeleton argument in early 2014, written with a view to a hearing then scheduled for March to consider issues of time and jurisdiction, that he did not wish to sit in a waiting room too long with other Claimants, that he needed to have simplified questions because of his communication problems and that he needed questions directed through the Judge for clarity. He commented:
  14. " If these adjustments are possible I feel I will be able to be present for the whole day with support."

  15. The hearing in March approached. At that stage the Claimant had the assistance of the Norwich Community Law Centre. Samuel Willis of that organisation provided a witness statement of 18 March 2014. It was written to seek a further adjournment at the hearing that was soon to come. However, in the witness statement, between paragraphs 6 and 10, Mr Willis set out some useful information about the Claimant's condition. He noted there that the Claimant found it difficult to answer questions just after they were asked:
  16. "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)
  17. The witness statement also noted that Mr Rackham had had a hearing before the first-tier Tribunal (we understand that this was in relation to industrial injury disablement benefit) and said:
  18. "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."

  19. On 20 March the hearing (at which this application was considered) came before Judge Postle, who was later to preside over the decision with which we are concerned on appeal. He heard from both Mr Horan and Miss Joffe. He decided to postpone the Preliminary Hearing in the light of Mr Horan's submissions. In paragraph 2 of the order that he made he provided:
  20. "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."

  21. He added that the report was to be provided by 9 June 2014, and that he had noted that Miss Joffe had indicated that she could not confirm that her client would pay for the cost of such a report though it might and she would advise them to do so, it being recognised that the Claimant's then financial position might be a barrier to his doing so himself. The Judge further provided at paragraph 7 of his order that:
  22. "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."

  23. Only a few days later, on 28 March, DAC Beachcroft, who represented the Respondent, wrote to the Tribunal to tell it that having researched the costs of the report that would be required to deal with the two issues - (1) whether there was a disability and, if so, its nature; and (2) the issue of reasonable adjustments - it had discovered that it would cost in the region of some 3,000 if provided by a "potentially suitable expert". The Respondent declined to pay for this since it thought the cost disproportionate, but suggested that the Claimant consented to the release of all of his medical and hospital records instead. It no doubt anticipated that those records might supply sufficient information to determine the question.
  24. The Claimant for his part asked if the Tribunal would pay for a medical report of the sort indicated. The response to that came on 23 April 2014 in a letter that in its material parts read as follows:
  25. " 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."

  26. As the hearing in August drew closer, the Respondent wrote on 24 June 2014 to the Tribunal to say as follows, so far as material:
  27. " 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."

  28. The Claimant, to whom that email was copied, responded two days later to say simply, "In responding to the email attachment dated 24th June 2014. I have no objection". At this stage therefore it might be thought that the parties had by a process of request, consideration and co-operation, agreed between themselves, subject only to the endorsement of the Tribunal, what it would be reasonable to have to make by way of adjustments, and it appears that the Tribunal did indeed agree to effect those adjustments.
  29. We are told that, as it happened, Mr Horan was not reinstructed in the case by the Bar Pro Bono Unit until the night before the hearing. In the meantime the Claimant had produced a witness statement that said nothing about the aspects of the case relating to time or to the principal considerations relevant to jurisdiction. It did, however, make some allegations against the end-user Trust. At the hearing Mr Horan began by seeking an adjournment in order that the claim might be amended to make a case against the end-user. That was rejected, and no point arises in respect of it on this appeal.
  30. Before the hearing of the live issues began, and in an attempt to be constructive and helpful, Miss Joffe offered the Claimant a note of the questions she proposed to ask him about the issues to be discussed. They were in 49 numbered paragraphs, but, as Mr Horan points out, some of the paragraphs so numbered contained 3 or 4 questions so that the total number of questions if separately counted came to something in the region of 100. The written note was volunteered by Miss Joffe because she had noted that in the Equal Treatment Bench Book it was said that it might be helpful for a witness to have the questions to be asked set out in writing in advance. As we understand it, this offer was volunteered by her rather than requested directly by the Claimant.
  31. Having failed in the application in respect of amendment, Mr Horan then sought an adjournment. He did so upon the basis that a medical expert's report had not been obtained, though one might, as the Tribunal itself had earlier recognised, have demonstrated that there were further adjustments that not only could but should be made. The Tribunal considered the application formally as an application for postponement, but in effect as an application to obtain further information in order to consider the question of reasonable adjustments, and rejected it. It did so for a number of reasons. It was concerned about the passage of time. It noted that its obligation was to ensure justice as between both parties. It observed at paragraph 32, adopting the third person:
  32. "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."

  33. Mr Horan submitted that the Tribunal should adjourn the Preliminary Hearing whilst the Claimant answered the questions in writing so that he did not have to answer them orally. Miss Joffe opposed that, noting the expense that the Respondent had incurred in attending the two previous abortive hearings and that the Claimant had had ample time in the months between March and August to give instructions to his representatives.
  34. The Tribunal noted first that there was:
  35. "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.

  36. Second, because of the time that had elapsed, it thought it would not be in the interests of justice to allow an adjournment.
  37. Third, adjustments had been made. The Respondents had very helpfully prepared questions, and there was no reason why the Claimant should not answer those orally. The Tribunal noted in addition (paragraph 52) that there was nothing to stop the Claimant explaining precisely what adjustments he needed. Plainly, that was a reference to any further adjustments. The only one proposed in addition to those that had already been suggested (and adopted) was that he should take the questions away and answer them in writing in his own time. The Judge rejected that suggestion. Miss Joffe had submitted that a hearing should be open and in public and that there was nothing in the Equal Treatment Bench Book that required otherwise.
  38. The Tribunal additionally noted that the Claimant had appeared before a first-tier Tribunal with the adjustments to which Mr Willis had referred in his witness statement, and they had worked; next, that his disability, being mild, was not of such a nature that he could not hold down a job; and next, that it had medical evidence (the disclosed notes) that had become available since the hearing in March. We note that in that medical evidence there was a reference, which Mr Horan was keen to stress to us, that the IQ of the Claimant was 67 and his verbal IQ stood at 75. We appreciate in the Claimant's favour that, although nothing in particular was made of it before us, there may very well be a difference between receptive communication (that is, understanding questions as asked) and expressive communication (that is, giving an answer to those questions having received them).
  39. The Appeal

  40. The Claimant argues that the Judge failed to apply the Equal Treatment Bench Book, which as a matter of law he should, and in particular under Chapter 7, the chapter headed "Mental disabilities, specific learning difficulties and mental capacity", had not observed paragraph 19, which reads:
  41. "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."

  42. Paragraph 20, we should add, goes on to say:
  43. "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."

  44. Mr Horan argued on the Claimant's behalf that the Tribunal was under a duty to make reasonable adjustments. That duty arose because the United Nations Convention on the Rights of Persons with Disabilities had become adopted as an additional Treaty of the European Union by virtue of the European Communities Act 1972 and therefore had the status of European Union law, which bound the interpretation of rules and influenced the operation of powers so far as Tribunals and Courts were concerned. A manifestation of the approach taken in that Convention was conveyed by the Equal Treatment Bench Book, to which, he submitted, insufficient respect was generally given as a matter of practice by those operating in the Employment Tribunal field.
  45. In essence, Mr Horan was submitting that, in circumstances in which the Tribunal had identified a need in March for there to be a report by an expert other than a GP, the Tribunal Judge was obliged to satisfy the duty identified in the preceding paragraph by adjourning, and was duty bound to order, or at the very least to request, HMCTS to obtain a medical report at the expense of the State in circumstances where the Claimant, as here, could not himself afford it. This was necessary to do fair justice as between the parties by ensuring that he had fair and proper access to the court, such access being guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms.
  46. Discussion

  47. The question, as it seems to us, is not whether there was a duty to make reasonable adjustments: both parties accept that there was. The question is as to the adequacy of the steps the Tribunal took either in making adjustments or in considering whether to seek further information in respect of their making.
  48. We do not think it could sensibly be disputed that a Tribunal has a duty as an organ of the state, as a public body, to make reasonable adjustments to accommodate the disabilities of Claimants. Miss Joffe accepts, and indeed submits, that the particular route by which the obligation rests upon the Tribunal is unimportant, though it might be one of a number, because there can be no dispute there is such an obligation. It may be, as Mr Horan submits, through the operation of the United Nations Convention by the route he suggests. It may be by operation of the Equal Treatment Directive or it may arise simply as an expression of common-law fairness.
  49. As to the purpose for which the adjustment is made, since it seems to us that what is reasonable has to be seen in context. The Convention, at Article 13(1) and (2) dealing with access to justice, provides:
  50. "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."

  51. That is the right secured for the purpose set out in Article 1:
  52. "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."

  53. In the course of his submissions Mr Horan took us also to a number of the recitals to the Convention. The purpose as he expressed it was "moral, human and realistic", and it was to ensure that a person with a relevant disability could participate as fully as those without such a disability, in the circumstances of a case such as the present, in being given access to justice.
  54. It is well known that those who have disabilities may suffer from social, attitudinal or environmental difficulties. There may be barriers to their achieving the rights to which as human beings they ought to be entitled. We therefore take the purpose of making an adjustment as being to overcome such barriers so far as access to 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. We accept that practical guidance as to the way in which the court upon whom the duty to make adjustments for those purposes is placed should achieve this is given by the Equal Treatment Bench Book.
  55. Miss Joffe does not dispute any of that.
  56. The issue for us sitting as an Employment Appeal Tribunal is not whether in the light of the facts that we have set out and the duty resting upon the Tribunal, as indeed it rests upon us, we would have taken the same steps as did the Tribunal. The question for us is whether the Judge in deciding as he did or doing as he did committed an error of law. Here, the parties began apart but concluded in the same submission.
  57. Initially, Mr Horan for his part was submitting that this Tribunal should approach the matter as one of fairness; if it thought that the procedure adopted was unfair, then there would be an error of law. He supported this submission by reference to Osborn v Parole Board [2014] 1 AC 1115, [2013] UKSC 61 and in particular to the way in which Lord Reed JSC had discussed procedural fairness at common law (see paragraphs 64 to 65). There, he emphasised that where procedural fairness was in issue the court should determine for itself whether a fair procedure was followed.
  58. Miss Joffe for her part began by asserting that the approach was "Wednesbury unreasonableness" (deriving from Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The decision here, which could be seen as a decision to refuse to postpone the hearing but to continue whilst making the adjustments contemplated, no others being known of, was a case management decision that would be open to review only if it was unreasonable in the sense of Wednesbury. For this, she went to the decision of the Court of Appeal in the case of O'Cathail v Transport for London [2013] ICR 614. Before that case had been decided, there had been suggestions that a different approach might be taken to cases of adjournment, that of overall fairness, rather than the approach that should be taken to other case management decisions, which, in shorthand, would be Wednesbury. Mummery LJ, giving a Judgment with which Etherton and McFarlane LJJ agreed, rejected the argument. The argument had relied upon a case arising in the civil courts, that of Terluk v Berezovsky [2010] EWCA Civ 1345. He thought (paragraph 44) that the crucial point of difference between O'Cathail, which was a case arising in the Employment Tribunal, and Terluk was that in the latter the Court of Appeal could decide to set aside a decision if it were wrong or unjust whereas an Employment Tribunal's decision could be appealed only on a question of law. He observed:
  59. "44. A question of law only arises when there is an error of legal principle in the approach or perversity in the outcome. "

  60. He commented further - helpfully in the present case - at paragraph 45:
  61. "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.

  62. There might possibly be a difference between the approach to the common law duty of fairness applicable to decisions on appeal from civil cases and those where a point of law needed to be established, as in employment appeals. The decision in O'Cathail was reached before that in Osborn, but since that latter decision Laing J has regarded the point as well settled so far as the Employment Tribunal is concerned by the O'Cathail decision (see Pye v Queen Mary University of London UKEAT/0151/15, a Judgment of 22 October 2015). She adopted the Wednesbury approach.
  63. In our view, the parties were both right to withdraw to some extent from their original submissions. Miss Joffe had reflected upon the case overnight. The considerations that may well have weighed were that there are some cases in which it is plain that a Tribunal has nothing that might sensibly be called a case management discretion to exercise in order to secure fairness. An example might be that of Claimants, witnesses or Respondents who have no English language. If they have a foreign tongue, an interpreter is needed. If they are dumb, they need sign language to convey what they mean. If they are deaf, they need someone to assist them with understanding. Without this they simply cannot get access to the justice that is required. If such a case were to proceed without the necessary steps being taken, there would be a material procedural irregularity that, just as in a case of bias, would fall for assessment on appeal in which the appellate body, initially the Appeal Tribunal, acts as fact-finder.
  64. One instance of this approach was that adopted by this Tribunal in considering an appeal relating to a request for an interpreter made by a Cambodian national who had a considerable command of English, but not a complete one; that of Hak v St Christopher's Fellowship UKEAT/0446/14, a Judgment of 16 November 2015. In the course of that the Tribunal said that there were different circumstances (see paragraphs 39 to 40) in which an interpreter might be called for. One might be where there was no command of the language sensibly to speak of at all, the other where there was a very considerable if not complete command, both sitting at extremes of the spectrum. At paragraph 41 the Appeal Tribunal said this:
  65. "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)

  66. It might be thought that enabling a party who might not by reason of a disability be able to participate adequately in a hearing, just as someone with limited language or comprehension might be unable, would therefore be an essential matter of fairness open to review on appeal: however, in this case the decision would be bound up necessarily with the consequential decision whether the case should be postponed to enable further enquiries to be made. Such a decision, viewed on its own, would normally be treated as a case management decision. Miss Joffe submitted that in effect a decision such as the present should be treated as a hybrid. She had in mind the words of Lord Steyn in the case of R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, [2001] UKHL 26 in particular at paragraphs 27 to 28. In paragraph 27 he noted that in this field, dealing with the question of fundamental rights:
  67. "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. "

  68. He added in paragraph 28 that:
  69. "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. "

  70. The intensity of review in similar cases is guaranteed by the twin requirements that it must be shown that a limitation of the right is necessary in a democratic society in the sense of meeting a pressing social need, and an answer must be given to the question whether the interference is really proportionate to the legitimate aim being pursued.
  71. Mr Horan in reply adopted this approach, such that in the event the parties were advocating a similar test.
  72. In this case, though we are attracted to the proportionality analysis that Miss Joffe proposed and that Mr Horan in reply adopted, we do not think that the decision actually depends upon the approach we take, though we would observe that we would be very hesitant before suggesting that a pure Wednesbury approach was appropriate in any case in which it appeared to the reviewing court that it would have been reasonable to have to make an adjustment if that adjustment appeared necessary to obtain proper equality of arms for someone with a relevant disability.
  73. It seems to us we have to ask here whether there was any substantial unfairness to the Claimant in the event. We have to consider the whole picture, and we have to consider fairness not in isolation, viewing his case alone, but as one in which there were two parties. The point made by Mummery LJ in O'Cathail deserves repetition. Here, when we examine the history, we would emphasise the importance for those who have disabilities that they be given proper respect for their autonomy as human beings. In many cases, if not most, a person suffering from a disability will 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. This may not apply, of course, to those who are challenged in such a way that they may lack capacity or perhaps be very close to lacking it. However, there is no reason to think that the Claimant here was in that category at all. Though suffering from the effects of Asperger's and though his IQ was 67, he had, as the Judge observed, been able to fulfil a useful role in employment and had been able to conduct a case in the first-tier Tribunal. We would comment that his autonomy and integrity as a human being would require his views to be properly respected. If therefore, as happened here, the Claimant were to agree, as he did, to adjustments proposed by the Respondent, when the Claimant had earlier made a request for very similar adjustments, we consider the Judge was entitled to regard his agreement as evidence that those adjustments were appropriate. The Tribunal was also entitled to take into account that the Claimant's GP endorsed these adjustments as those that would be necessary. Mr Horan's final submissions to us were consistent with that conclusion.
  74. The question whether the Tribunal was properly alert to its duty to make reasonable adjustments can only be answered in the affirmative in the present case. It made adjustments. The decision of Judge Laidler showed she was alert to the need to do so. The subsequent decisions of Judge Postle echoed that. Judge Postle was fully aware of the provisions of the Equal Treatment Bench Book. He was taken to them by the parties, but he also referred to them in his Judgment (see paragraph 8). The view that he expressed at paragraph 42, in the passage containing the double negative, was that the adjustments suggested and agreed between the Claimant and his general practitioner would be adequate. They had been added to by the offer made by Miss Joffe of questions in writing, which was accepted. Therefore the Judge, who himself would have the questions in advance, would be in a position to simplify any of the questions that might require it. The Judge referred to the Equal Treatment Bench Book again at paragraph 54, showing that his consideration was not simply a matter of making a single reference and paying lip service to its contents. He did so, correctly, to answer and reject the suggestion that an appropriate adjustment would be to provide the questions for the Claimant to answer in his own time in the privacy of his home. He might have added, as Miss Joffe has, that the hearing guaranteed by Article 6 is to be a public hearing.
  75. The Equal Treatment Bench Book at Chapter 5 sets out a great number of useful provisions, which are principally directed at criminal proceedings. They also, however, have a relevance, and not simply by analogy, to civil proceedings including those in Tribunals. The opening words of paragraph 34 say that much of the chapter is also relevant to civil and family cases and to Tribunal hearings involving a vulnerable witness, party or litigant in person. Mr Horan argued in the Notice of Appeal that there had been a failure to observe the provisions of the Bench Book. We have not identified a specific provision in the Bench Book in respect of which there was such a failure. At paragraph 20 in Chapter 7 (see above) the words "expert evidence may be required" are used. The word "may" might suggest a permissive application of the paragraph. It may otherwise indicate that there may be some occasions on which expert evidence is not a matter of choice but actually necessary, but may be other occasions when it is not, such that "may" relates more to incidence rather than across-the-board discretion. We think probably this latter approach is correct, but it does not mean that in this case the facts compelled a search for further information.
  76. We accept that since the Judge first raised the need as he saw it for a medical expert to report things had moved on; the situation was fluid. The medical records answered the questions that the expert might have done in respect of disability; disability was no longer in issue. As to adjustments, that had become a matter of agreement between the parties before the hearing. There had been no continued request for such a report prior to the hearing in August. There was no knowledge as to what the expert might say. There was no particular reason to think he 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. Whereas in many cases we think that a Tribunal may have to seek expert input from an appropriate expert, whoever that might be, this was a case in which there was already a substantial amount of evidence. There was the evidence given by the agreement of the parties themselves. There was in his own words an expression of those adjustments that the Claimant himself thought would work. There was evidence that the Claimant had with similar adjustments successfully negotiated a hearing before the first-tier 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.
  77. During the hearing some points arose as to the nature of the questions and answers, and the suggestion was made that the Notes of Evidence showed that the Claimant had in fact found it difficult to cope. We note, first, that there is no complaint here relating to any supposed failure of the Tribunal to keep the adjustments under review - we would expect the Tribunal, having made adjustments, to do so - but in any event the lay members in particular are clear that the record is consistent with a Tribunal Judge seeking to ensure that the matter was dealt with with reasonable speed and with sensitivity, even if assuming a different inflexion or different emphasis in the words spoken, it might also be consistent with the other.
  78. The conclusion that we have reached is that in this particular case, given that there was a considerable amount of evidence, given the central submission of Miss Joffe that the adjustment has to be one that is reasonable, given the balance that it was necessary to make between the parties to ensure fairness to both of them, and accepting that on the material before the Tribunal at the time there were ample grounds for concluding that with the adjustments that were being made, and had been offered and accepted the Claimant could have the reasonable access to justice and the reasonable opportunity to put his case as he would wish it to be put before the Tribunal to which Article 6, the Convention, common law fairness and the law entitled him. It is on that basis therefore that we do not consider that there has been an error of law in the approach of the Judge below.
  79. We would observe in passing that the Employment Tribunal here is to be commended for its proactive approach at an early stage in seeking to know what reasonable adjustments it might make. This is not to say that being proactive immunises a Tribunal from later criticisms might not be made of the adjustments eventually adopted, or to the effect that the procedure might not be improved, but it is to recognise that it is exactly the right place from which to start. It is not always easy for a Tribunal; there are many different circumstances in which people with different disabilities come before Tribunals on very different cases. It is difficult to generalise from one case to another. A considerable respect must be given to the decision of the Judge below, who has seen the parties and who is best placed to judge the fairness of what happens provided in a case such as this that he then keeps the matter under review.
  80. Guidance

  81. We have been asked whether we should give guidance for the benefit of other Tribunals. Early in the proceedings we expressed the view that disabilities are so different one from another, and even in respect of disabilities within the same class may be of such different severity and associated with other symptoms that themselves may differ that we would be very cautious about doing so. Our caution is amplified by the fact that the Equal Treatment Bench Book has had the advantage of expert input and consideration by authors who have examined the area and have set out in some detail guidance for Tribunals.
  82. We would make only three points that may be of use to future cases. First, we would emphasise that each case is the case of an individual. Each individual will necessarily be in a position that is to some, and it may be some great, extent different from that of another. A decision as to what it is reasonable to have to do which is then made by a Tribunal must be tailored not to some general idea of what a person with that disability, or it may be disabilities generally, needs but what the individual before the Tribunal requires.
  83. Second, we think that a considerable value should be placed upon the integrity and autonomy of the individual. It is precisely that which the extracts from Article 13 and Article 1 of the Convention emphasise. 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. As we have said earlier in this Judgment, there may be exceptions to that, though they may be rare. Generally, we would wish to emphasise 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.
  84. Third, we think that emphasis might wish to be given in the Tribunal sphere to that which is covered in the Equal Treatment Bench Book in criminal cases, in particular where it describes ground rules hearings. 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, as Mr Harminder Singh would wish to emphasise, it provides something of a baseline from which other applications and decisions may be considered. We should add that although the Tribunal in this case did not call what it did a preliminary ground rules hearing, it effectively held one.
  85. Finally, we think that there is a considerable value in taking these steps quickly. In almost any case speed is important, but it particularly may be so in the case of those who suffer from disabilities and in whose best interests as well as the interests of other parties it is sensible to resolve disputes as early as possible.
  86. For those reasons and with those observations, albeit perhaps of more limited scope than Mr Horan would have wished, we dismiss this appeal, once again expressing our very great gratitude to both teams of lawyers. The way in which matters developed contributively before the Tribunal is a good example of the way in which parties should co-operate with each other and with the court in order to do their best to ensure a fair hearing.


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