Shui v University of Manchester

An appellate tribunal considering an alleged denial of a fair hearing must determine for itself whether the procedure was fair. The assessment is made overall, balancing the interests of both parties.

A litigant in person with mental health difficulties who has capacity may choose to proceed after being informed of the option and consequences of postponement. The tribunal should respect that choice and make appropriate, individualised and dynamic adjustments. Cross-examination may be curtailed where continuing would cause serious distress, particularly when the opposing party elects not to challenge the evidence. A fair hearing may still be achieved through witness statements, documentary evidence and closing submissions.

The Claimant, a litigant in person with serious mental health difficulties, appealed against the dismissal of his claims for disability discrimination, victimisation and unfair dismissal by the Manchester Employment Tribunal.

Before and during the seven-day merits hearing, the Employment Tribunal made adjustments including breaks, assistance from the Claimant’s daughter and shortened hearing days. The Claimant knew he could seek a postponement but chose to proceed. During cross-examination he became distressed, and the Respondents applied to end their questioning. The Tribunal accepted that application and proceeded to closing submissions.

The appeal concerned whether the Tribunal should have postponed or adjourned the hearing, or expressly reminded the Claimant of that option, and whether ending cross-examination denied him a fair hearing.

1. Fairness determined on appeal. Applying R (Osborn) v Parole Board [2014] AC 1115 and Galo v Bombardier Aerospace UK [2016] IRLR 703, the EAT had to determine for itself whether a fair procedure had been followed. The question was not merely whether the ET’s case-management decision was reasonable.
2. Proceeding with the hearing. The Claimant had capacity, knew of the possibility of postponement and had been given sufficient information to make an informed choice. The ET was entitled to respect his decision to proceed. It was not required to impose an adjournment contrary to his wishes. The Respondents’ warnings about the consequences of postponement were relevant to ensuring an informed decision.
3. Overall assessment and adjustments. Fairness had to be assessed in the round, taking account of both parties’ interests. The ET had a wide case-management margin, subject to fairness and the overriding objective. The adjustments were individualised and could be made dynamically during the hearing. The principles in Mehta v Child Support Agency [2011] IRLR 305, Drysdale v Department of Transport [2014] IRLR 892, Rackham v NHS Professionals Ltd UKEAT/0110/15/LA and Transport for London v O’Cathail [2013] EWCA Civ 21 supported that approach.
4. Ending cross-examination. It was for the Respondents whether to challenge the Claimant’s evidence by cross-examination. By stopping, they accepted the associated evidential risk. The Claimant retained his witness statement, documentary evidence and an opportunity to answer the Respondents’ case in written closing submissions. The absence of further cross-examination therefore did not itself make the hearing unfair.
5. The appeal was dismissed. The ET’s judgment remained undisturbed.

• Employment Tribunal: The Manchester Employment Tribunal dismissed the Claimant’s claims, in a judgment sent on 6 October 2014.
• Employment Appeal Tribunal: Permission to proceed was granted on the issue of postponement, adjournment and fair hearing. The appeal was dismissed.