Joseph v Brighton & Sussex University Hospitals NHS Trust

An Employment Tribunal is not generally under a legal duty to conduct a proactive or inquisitorial investigation into factual and evidential matters which a party has not put forward. Its role is to decide the case presented by the parties, although it may give appropriate assistance to a litigant or representative and may question witnesses to clarify issues or elicit evidence.

The extent of such assistance is a matter of judgment and procedural fairness. It does not become a legal duty because the issue is disability discrimination or because the issue is important to the litigant. A Tribunal does not err in law by failing to identify and rely on documents in a large hearing bundle to which neither party referred.

The Claimant appealed from the decision of the Employment Tribunal, sitting in London (South), dated 13 March 2014. The Tribunal had dismissed her claims for unfair dismissal and disability discrimination.

She relied on antiphospholipid syndrome and stress or depression. The Tribunal found that she had not proved that either condition met the statutory definition of disability. It also found, in the alternative, that the Respondent did not know and could not reasonably have been expected to know of any disability.

On appeal, the Claimant argued that medical material within the 580-page agreed bundle required the Tribunal to take a purposive and inquisitorial approach to the disability issue, despite the material not having been put forward in her evidence or referred to at the hearing.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the Claimant had not established disability on the evidence she put before it. Her witness statement did not address disability, her impact statement was not introduced as sworn evidence or tested in cross-examination, and no reference was made to the APS documents now relied upon.

2. Under Employment Tribunal Rules 2013, Rule 41, a Tribunal has a broad power to regulate its procedure fairly and may question parties or witnesses where appropriate. The Rule did not alter the general approach in Mensah and Muschett. An Employment Tribunal is not required to investigate factual evidence which might improve a party’s case. Its function is to hear the case the parties choose to present, make factual findings, and decide it according to law.

3. The general principle applied equally to disability discrimination. The importance of a disability finding to the individual litigant did not create a distinct legal duty to conduct an inquisitorial inquiry.

4. It would have been permissible for the Employment Judge to invite confirmation of the impact statement, permit supplementary questions subject to fairness, or ask the Claimant to identify relevant documents. Those were discretionary procedural steps, not mandatory ones. The Tribunal was therefore entitled to give the unattested impact statement such weight as it thought proper.

5. Nor did the Tribunal err by failing to address documents within the 580-page bundle which neither party had identified. A contrary rule would require Tribunals to search every bundle for material a party might have been wise to deploy.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s dismissal of the disability discrimination claims was upheld.

• Employment Tribunal, London (South): On 13 March 2014, dismissed the Claimant’s claims for unfair dismissal and disability discrimination.