J W Rackham v NHS Professionals Ltd

An Employment Tribunal must make reasonable adjustments to enable a disabled party to participate effectively and obtain a fair hearing. The adjustments must address the needs of the individual, rather than assumptions about a disability generally, and must be reasonable in the context of fairness to both parties.

Expert evidence may sometimes be necessary, but it is not automatic. A Tribunal may decide that further expert evidence is unnecessary where it has sufficient reliable material, including the party’s own account, medical evidence and agreed adjustments. Proper weight should normally be given to a capable disabled person’s autonomous agreement to adjustments. The arrangements must remain under review.

The claimant, who had Asperger’s syndrome and anxiety, brought Employment Tribunal claims for unfair dismissal and disability discrimination. At a preliminary hearing the Tribunal rejected the claims as out of time or lacking reasonable prospects, and found that the alleged discriminatory conduct was not attributable to the respondent agency employer.

Earlier case-management steps had addressed the claimant’s participation. Although an expert report had initially been contemplated, its cost was disproportionate and medical records were obtained instead. The parties subsequently agreed adjustments, including simplified questions, questions through the Judge where clarification was needed, and separate waiting arrangements. On the hearing day the respondent additionally supplied proposed cross-examination questions in writing.

The claimant sought a postponement to obtain expert evidence and to answer questions in writing at home. The Tribunal refused. The central issue on appeal was whether that refusal and the arrangements made denied him a fair hearing by failing to make adequate reasonable adjustments.

1. Appeal dismissed. The Tribunal made no error of law in refusing a further postponement or expert report. Its duty was to make reasonable adjustments enabling effective access to justice and fair participation; that duty was accepted by both parties.

2. The appellate question was whether there had been substantial unfairness, assessed in the round and with fairness to both parties in view. A purely Wednesbury approach would be inappropriate where an adjustment appeared necessary for proper equality of arms. However, the result did not depend on whether the review was framed as procedural fairness, case-management review, or a proportionality-based hybrid.

3. The Tribunal had ample material to decide that the agreed arrangements were adequate. It could properly rely on the claimant’s own earlier requests, his agreement to materially similar arrangements, his general practitioner’s support, the medical records, and evidence that similar measures had enabled him to participate in an earlier Tribunal hearing. There was no evidence that an expert would identify a further reasonable adjustment which was necessary.

4. The Equal Treatment Bench Book did not require expert evidence in every case. Its guidance calls for attention to the particular individual and recognises that expert evidence may be needed. The Tribunal had engaged with that guidance and had not treated the claimant’s request to answer questions privately at home as a required adjustment.

5. For future cases, adjustments should be tailored to the individual; proper respect should be given to a capable person’s autonomy and stated needs; and an early ground-rules-style consideration may establish a useful baseline. Arrangements should nevertheless remain under review.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the refusal of a further postponement and expert evidence.
• Employment Tribunal, Norwich: at a preliminary hearing, Employment Judge Postle rejected the claims on limitation, merits and jurisdictional grounds. Reasons were given on 29 December 2014.