Fraser v Crown Prosecution Service (Disability Discrimination)

An employment tribunal exercising its broad review jurisdiction in the interests of justice must balance the finality of litigation against all relevant circumstances. Where a litigant has a mental impairment, the tribunal must take account of its potential effect on that litigant’s ability to conduct proceedings rationally. This is a relevant discretionary consideration, even where the conduct appears objectively unreasonable.

A tribunal may also take account of the need for medical evidence to determine an extant claim for psychiatric or personal injury arising from discrimination. The absence of such evidence may justify reopening a remedy decision made in the claimant’s absence. The tribunal need not have assumed a statutory reasonable-adjustments duty under the Equality Act 2010 in order to reach that conclusion.

The claimant succeeded in a limited disability-discrimination claim concerning the respondent’s management of his absence. A remedy hearing proceeded in his absence and awarded compensation for injury to feelings, but no damages for personal injury because medical evidence had not been obtained.

On review, the London Central Employment Tribunal revoked that remedy judgment and ordered a further remedy hearing. It considered both the claimant’s mental impairment, which might have affected his conduct while unrepresented, and the need for medical evidence on the personal-injury element of the remedy claim.

The Crown Prosecution Service appealed, contending that the Tribunal had wrongly treated itself as subject to a statutory duty to make reasonable adjustments and had wrongly reopened a final remedy decision. The claimant cross-appealed conditionally concerning an alleged finding of unreasonable conduct.

1. The Crown Prosecution Service’s appeal was dismissed. The Employment Tribunal made no error of law in allowing review, revoking its earlier remedy judgment and relisting the remedy hearing.

2. Although the Tribunal was exercising a judicial function, its reasons did not show that it believed that it owed a statutory reasonable-adjustments duty under section 29(7) of the Equality Act 2010. Read as a whole, the reasons showed an orthodox exercise of the broad discretion under rule 34 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The Tribunal weighed the interests of justice, including finality, against the claimant’s impairment and the possible effect of that impairment on his conduct.

3. The claimant’s objectively unreasonable conduct had to be assessed subjectively in the light of his mental impairment and its likely effects. There was ample material, including psychiatric evidence, prior findings and the claimant’s correspondence, to support the conclusion that the impairment might have affected his ability to conduct proceedings rationally. Guidance in the Equal Treatment Bench Book was relevant to the fair treatment of disabled litigants.

4. The Tribunal was also entitled to regard medical evidence as necessary to do justice to the remedy award. A personal-injury claim based on exacerbation of mental ill-health was pleaded and was not hopeless merely because only some discrimination allegations had succeeded. The causative effect of the proved discrimination, rather than their number, was the relevant issue. Medical evidence could assist with causation and quantum, and its absence at the hearing justified giving one final opportunity.

5. The court did not need to decide the scope of the judicial-function exemption in Schedule 3 to the Equality Act 2010. It observed that the exemption was limited to core adjudicative and listing functions.

6. The claimant’s conditional cross-appeal was dismissed. The review decision made no binding finding for future costs proceedings on whether his conduct was unreasonable. His separate appeal against the original remedy judgment was dismissed upon withdrawal.

• Employment Appeal Tribunal: The CPS appeal was dismissed. The review order revoking the earlier remedy judgment and relisting the remedy hearing was upheld. The claimant’s conditional cross-appeal was dismissed.
• London Central Employment Tribunal: By a decision dated 20 August 2012, with reasons sent on 2 October 2012, the Tribunal allowed a review, revoked its remedy judgment made following the claimant’s absence, and ordered a new remedy hearing.
• London Central Employment Tribunal: Following a remedy hearing on 10 February 2012, the Tribunal awarded compensation for injury to feelings but made no personal-injury award because medical evidence was unavailable.