Crown Prosecution Service v Fraser (Disability Discrimination)

When deciding whether the interests of justice require a review of an Employment Tribunal remedy judgment, the finality of litigation is an important factor but is not decisive. The Tribunal must also take account of a disabled litigant’s mental impairment and its potential effect on the conduct of proceedings, including conduct which is objectively unreasonable.

This is an aspect of the proper exercise of the review discretion. It does not require an assumption that a statutory reasonable-adjustment duty governs the Tribunal’s adjudicative decision. Where a remedy hearing proceeded in the litigant’s absence and medical evidence may be needed to determine a pleaded psychiatric personal-injury claim, the absence of that evidence may properly favour review and re-listing.

The Claimant succeeded in a limited part of his disability-discrimination claim against the Crown Prosecution Service. The Employment Tribunal later held a remedy hearing in his absence. It awarded injury to feelings but made no personal-injury award because there was no relevant medical evidence.

On review, the Tribunal revoked the remedy judgment and ordered a new hearing. It held that the Claimant’s mental impairment might have affected his ability to conduct the proceedings rationally, and that medical evidence might be necessary to determine his personal-injury claim fairly.

The Crown Prosecution Service appealed, contending that the Tribunal had wrongly treated itself as subject to a statutory reasonable-adjustment duty and had given insufficient weight to finality. The Claimant cross-appealed conditionally concerning an alleged finding of unreasonable conduct.

1. Appeal dismissed. The Employment Tribunal made no error of law in granting review, revoking its earlier remedy judgment and re-listing the remedy hearing.

2. Read as a whole, the review reasons did not show that the Tribunal believed that it was subject to a statutory duty under Equality Act 2010 to make reasonable adjustments while exercising its judicial function. The Tribunal was weighing the relevant factors in deciding where the interests of justice lay. It was entitled, and obliged, to consider the Claimant’s mental impairment and its possible effect on the way he conducted the proceedings.

3. That consideration was supported by the medical evidence, the earlier findings on disability, the Claimant’s correspondence and the history of the proceedings. Objectively unreasonable conduct could properly be assessed subjectively in light of the impairment and its likely effects. The Tribunal did not find that all the conduct was caused by the impairment, nor did it make a binding determination for a future costs application.

4. The finality of litigation and the Respondent’s interest in its remedy judgment remained material factors. They were properly balanced against the Claimant’s vulnerability as an unrepresented disabled litigant and the need to do justice in the assessment of remedy.

5. The Tribunal was also entitled to regard further medical evidence as material. A pleaded claim for psychiatric personal injury required consideration of causation, including whether the discriminatory acts caused or materially contributed to an injury or exacerbation. The limited number of successful allegations did not make that claim hopeless. The previous statement that no award was made in the absence of medical evidence did not determine the claim substantively.

6. The conditional cross-appeal was dismissed because the alleged binding finding did not arise. The Claimant’s separate appeal against the remedy judgment was dismissed on withdrawal.

• Employment Appeal Tribunal: The Crown Prosecution Service’s appeal against the review decision was dismissed: [2014] UKEAT 21_13_702.
• Employment Tribunal: The London Central Employment Tribunal granted review, revoked its remedy judgment made following a hearing in the Claimant’s absence, and re-listed the remedy hearing.