Kouchalieva v London Borough of Tower Hamlets

An Employment Tribunal has a wide procedural discretion when dealing with a litigant in person. An agreed list of issues ordinarily defines the scope of the hearing, but it does not oblige the Tribunal to intervene whenever a party has not adduced evidence on an issue. An appellate error arises only where the Tribunal’s exercise of that discretion is unlawful or outside the range of reasonable disagreement.

In a reasonable-adjustments claim, it is good discipline to identify the PCP, the resulting substantial disadvantage and the proposed adjustment. Where the PCP and disadvantage are not disputed, the decisive question may be whether it was reasonable for the employer to make the proposed adjustment.

The Claimant, a passenger assistant employed on a transport service for children with special educational needs, developed serious physical impairments affecting her ability to undertake manual-handling duties. Following sickness absence, a period for redeployment and the absence of a suitable alternative role, she was dismissed.

The Employment Tribunal dismissed her claims for unfair dismissal and disability discrimination. It held that pre-dismissal discrimination complaints were out of time and that allocating her to the Cherry Tree school route was not a reasonable adjustment because of the safety risks associated with that route.

On appeal, the Claimant contended that the Tribunal had wrongly treated issues in an agreed list as unpursued, and had inadequately analysed her reasonable-adjustments claim under Equality Act 2010, section 20.

1. Appeal dismissed. The Employment Tribunal made no error of law in its treatment of the agreed list of issues. An agreed list normally confines the issues at the substantive hearing, but the Tribunal retained a broad discretion under the procedural rules as to whether and how to assist an unrepresented litigant.

2. The Tribunal was not required to ask the Claimant whether she intended to abandon every historical allegation that had not been addressed in her evidence or submissions. Excessive intervention may encourage claims that the litigant did not intend to pursue and may cause delay and expense. Conversely, intervention may be required where fairness demands it. The appellate question is whether the Tribunal acted unlawfully, omitted an essential matter, considered an irrelevant matter, or reached a decision outside the range of reasonable disagreement.

3. The unaddressed allegations were old and presented evident limitation problems. Although the Tribunal’s statement that such issues had disappeared was poorly expressed and would have been erroneous if it meant that the Claimant had withdrawn them, its later reasoning showed that it had treated all pre-dismissal complaints as out of time and had refused a just and equitable extension. That conclusion was not vitiated.

4. It was good practice to analyse a reasonable-adjustments claim by identifying the PCP, the comparative substantial disadvantage and the proposed adjustment, following Environment Agency v Rowan. Here, however, there was no material dispute that the PCP was manual handling, construed broadly, or that it placed the Claimant at substantial disadvantage.

5. The real issue was whether it was reasonable to require the Respondent to allocate the Claimant to the Cherry Tree route. The Tribunal was entitled to find that the route’s challenging and violent pupil behaviour created unacceptable health and safety risks. It was not bound to accept the Claimant’s own assessment that she could undertake the work. Its conclusion that the proposed allocation was not a reasonable adjustment for the purposes of section 20 was lawful.

• Employment Appeal Tribunal: Appeal dismissed: [2019] UKEAT 0188_18_2401.
• Employment Tribunal, London (East): By a judgment dated 31 October 2017, dismissed complaints of unfair dismissal and disability discrimination.