Anderson v Turning Point Eespro

What fairness requires for a disabled or vulnerable party in an employment tribunal depends on the circumstances. There is no mandatory requirement for a hearing labelled a ground rules hearing, nor for a fixed checklist of adjustments.

Where a party has professional representation, the tribunal may ordinarily expect the representative to identify and seek any necessary accommodations. The tribunal nevertheless retains ultimate responsibility for a fair hearing and may exceptionally need to act without a request. An adjournment to secure representation may be an appropriate adjustment where the material disadvantage is the party’s inability to conduct a complex case in person.

The appellant succeeded in her employment tribunal claim for sex discrimination. Following prolonged remedy proceedings, affected by serious mental ill-health, the tribunal awarded her £36,130.93 including interest.

When she unexpectedly attended a remedy hearing unrepresented in January 2014, the tribunal adjourned the case, facilitated a referral to the Bar Pro Bono Unit, and she was represented by counsel at the later hearings. The Employment Appeal Tribunal rejected her appeal against the remedy decision as raising no arguable point of law.

Her appeal to the Court of Appeal alleged that the tribunal had failed to make reasonable adjustments and thereby denied her a fair hearing. The central issue was whether its response to her unrepresented status and mental ill-health was legally inadequate.

1. Appeal dismissed unanimously. The Employment Appeal Tribunal had correctly concluded that the proposed appeal disclosed no arguable error of law.

2. The tribunal properly recognised that the appellant’s mental ill-health might disadvantage her in conducting a legally and medically complex case in person. It was entitled to adjourn the hearing, seek to obtain pro bono representation, explain that option to her, and give her time to consider it. That adjustment addressed the tribunal’s actual concern. Counsel subsequently represented her at the hearings which were in practice decisive of remedy.

3. No further adjustment was identified as necessary but omitted at those resumed hearings. No complaint about their fairness was advanced, and the earlier complaint about inappropriate cross-examination was not pursued. The appellant’s challenge was therefore academic as well as unfounded.

4. There is no rule that every case involving a disabled or vulnerable party or witness requires a hearing specifically called a ground rules hearing, or a prescribed checklist. As Rackham v NHS Professionals Ltd makes clear, fairness depends on the particular circumstances. Tribunals must make adjustments reasonably required to enable vulnerable parties and witnesses to present their case or give evidence effectively, but a mechanistic approach should be avoided.

5. Ordinarily, where a disabled or vulnerable party is professionally represented, the tribunal may leave the representative to take the lead in proposing accommodations. Representatives will usually understand the party’s needs and have access to appropriate medical advice. The tribunal retains ultimate responsibility for fairness and may exceptionally need to take steps not requested by a representative.

6. Both parties had psychiatric advice and the tribunal could reasonably expect counsel, once appointed, to seek further advice or accommodations if required. It was unnecessary to decide the broader contention that a tribunal must itself commission independent expert advice at public expense.

• Court of Appeal (Civil Division): dismissed the appeal: [2019] EWCA Civ 815.
• Employment Appeal Tribunal: Lewis J rejected the appeal on the papers under rule 3(7), and HH Judge Eady QC rejected it at an oral rule 3(10) hearing on 2 December 2015.
• Employment Tribunal: upheld the sex-discrimination claim in a liability decision sent on 3 November 2009. Its remedy decision, sent on 16 February 2015, awarded £36,130.93 including interest.