Jhuti v Royal Mail Group Ltd (Secretary of State for Business, Energy and Industrial Strategy intervening)

Employment tribunals have power to appoint a litigation friend for a party who lacks capacity to conduct proceedings. Although neither the Employment Tribunals Act 1996 nor the 2013 Rules contains an express provision, the appointment is a procedural case management matter within the broad statutory and procedural powers conferred on tribunals.

The power must be exercised consistently with the overriding objective, the common law duty of fairness, access to justice and the right to an effective remedy. The earlier decision in Johnson v Edwardian International Hotels Ltd was not followed, because it concerned materially different rules and its relevant observations were obiter. Tribunals should investigate capacity only on clear evidence and should apply safeguards when appointing a litigation friend.

The claimant had succeeded in claims for automatically unfair dismissal and whistleblowing detriment. During the continuing proceedings, medical evidence indicated that she lacked capacity to conduct the litigation. She applied for the appointment of a litigation friend.

The Employment Tribunal refused the application, considering itself bound by Johnson v Edwardian International Hotels Ltd [2008] UKEAT/0588/07, which had held that the tribunal lacked power to appoint a litigation friend. The appeal concerned whether the 2013 Rules, made under the Employment Tribunals Act 1996, conferred that power despite the absence of an express provision.

1. Appeal allowed. The 2013 Rules were wide enough to permit an employment tribunal to appoint a litigation friend where a party lacked capacity to conduct litigation. The matter was remitted to the Employment Tribunal to determine the appropriate appointment.
2. Section 7(1) of the Employment Tribunals Act 1996 conferred a broad power to make regulations necessary or expedient in relation to employment tribunal proceedings. The appointment of a litigation friend was procedural, not substantive, and fell within that power.
3. Rule 29 of the 2013 Rules conferred a general power to make case management orders at any stage. The specified powers in later rules did not restrict that general power. Read with the overriding objective in rule 2, including the requirement to deal with cases fairly and justly and, so far as practicable, to ensure that parties were on an equal footing, rule 29 included power to appoint a litigation friend.
4. That construction was reinforced by the common law duty of fairness, the constitutional right of access to justice, the right to an effective remedy and the interpretive obligation under section 3 of the Human Rights Act 1998. Continuing proceedings without representation for a litigant who lacked capacity would effectively deny participation and a remedy.
5. Johnson was not followed. It concerned the materially different 2004 Rules; the relevant observations were obiter; the issue had not been argued adversarially; and arguments based on fairness, equal footing and section 3 of the Human Rights Act 1998 had not been considered. Those matters constituted exceptional circumstances justifying departure.
6. Tribunals should investigate capacity only where clear evidence supports doing so. A proposed litigation friend should be able fairly and competently to conduct the proceedings, have no adverse personal interest, consent to act, and provide evidence supporting both suitability and the asserted lack of capacity.

• Employment Tribunal: Employment Judge Baty refused the application for appointment of a litigation friend and maintained that decision on reconsideration, relying on Johnson v Edwardian International Hotels Ltd [2008] UKEAT/0588/07.
• Employment Appeal Tribunal: The appeal was allowed. The matter was remitted to the Employment Tribunal to deal with the appointment question.