Nyathi v Secretary of State for Justice

A tribunal’s duty to make reasonable adjustments for a disabled litigant is fact-specific. Evidence that a person is unfit for work does not, without more, establish that they cannot present a claim in writing or attend a hearing. The tribunal need not order further medical evidence or provide additional assistance where the evidence and the litigant’s conduct do not show that it is required.

Where a party is absent, however, the tribunal should ordinarily consider making a telephone call to ascertain the reason before proceeding. That procedural error will not require remittal where the appellate tribunal can be sure that it made no difference to the result.

The claimant appealed an Employment Tribunal judgment of 31 May 2017. The Employment Judge declined to reconsider the striking out of claims for race and disability discrimination, notice pay and holiday pay, and struck out a claim for unfair dismissal.

The claimant had depression and was accepted to be disabled. He had repeatedly sought a stay while he obtained legal assistance, but had not supplied ordered particulars of the discrimination claims or reasons why the monetary claims should not be struck out. He did not attend the preliminary hearing on 31 May 2017.

The appeal raised whether further reasonable adjustments were required and whether the Employment Judge should have investigated the claimant’s absence before proceeding.

1. Appeal dismissed. The Employment Judge erred in law by failing to consider whether a telephone call should be made to find out why the claimant had not attended the hearing. In the absence of a clear prior indication that a party will not attend, that is ordinarily standard procedure. The judge’s assumption that the claimant had chosen not to attend was made without the information that such a call could have provided.

2. The error was immaterial. Even if the hearing had been adjourned, the claimant’s intended application for a stay had no prospect of success on the medical evidence. He had also failed to comply with directions requiring particulars of his discrimination claims and reasons concerning his pay claims. The material advanced disclosed no arguable unfair-dismissal claim and did not identify discrete post-earlier-claim allegations of discrimination.

3. The tribunal had not breached its duty under Equality Act 2010, section 20. The claimant’s inability to work did not establish an inability to conduct proceedings. The medical evidence did not state that he could not prepare written material or represent himself at a hearing. His conduct of earlier proceedings and later written communications supported that conclusion.

4. The adjustments already made were sufficient. They included clear directions, information about possible legal assistance, an unless order, a telephone hearing to assess fitness to proceed, and additional time to provide medical evidence. The tribunal was not required to obtain a further general-practitioner report of the kind ordered in Rackham, hold another ground-rules hearing, secure a McKenzie friend, or explain a standard hearing notice further. Its continuing duty to review adjustment needs did not arise on the suggested basis because the claimant did not attend and demonstrate an inability to present his case.

• Employment Appeal Tribunal: appeal dismissed: [2018] UKEAT 0229_17_0105. Although the Employment Judge erred procedurally in dealing with the claimant’s absence, the error was immaterial.
• Employment Tribunal: on 31 May 2017, declined reconsideration of an earlier strike-out of discrimination and pay claims, and struck out the unfair-dismissal claim.