Jayaram v Network Rail Infrastructure Ltd (Race discrimination)

An Employment Tribunal must secure a fair hearing and remain alert to disability-related barriers to effective participation. The adjustments required depend on the particular disability, its evidenced effects and the circumstances of the hearing. A diagnosis alone does not automatically require a prescribed set of adjustments.

Where no adjustment needs are raised or evidenced, an agreed procedural arrangement is not shown to be disability-related, and there is no objective indication that participation worsened after its modification, the Tribunal may fairly manage the hearing timetable. An adverse observation about a claimant’s evidence will not invalidate a discrimination decision where the decisive findings rest on accepted evidence from the respondent’s witnesses.

The claimant, who represented himself at the liability hearing, alleged direct race discrimination after failing an interview for a Grade 8 Signaller post. The Employment Tribunal at Ashford dismissed the claim. It accepted the respondent’s explanation for the interview scores and found that they were not tainted by conscious or unconscious racial discrimination.

In an amended claim form, the claimant had referred to depression, PTSD and ADHD, while stating that details of hearing adjustments would follow. No such details were provided. During cross-examination, the Tribunal allowed him to take notes. When the process became very slow, his wife took over note-taking.

The claimant appealed on the grounds that this change denied him a fair hearing as a disabled person and that the Tribunal inadequately addressed disability when assessing his evidence.

1. Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had followed a fair procedure.

2. The Tribunal had an obligation to be alert to disability-related issues and to facilitate effective participation. However, the amended claim contained no evidence of the nature or effect of the asserted conditions, and no adjustments were requested at the preliminary hearing despite the claimant then being represented. The claimant did not raise ADHD or explain a disability-related need when the note-taking arrangement was made.

3. On the evidence, the arrangement allowing notes was agreed because the claimant was unrepresented and wished to retain points for later use, rather than as an adjustment for ADHD. It was legitimate for the Tribunal to address the excessive delay caused by writing each question out in full. The change to note-taking was suggested by the claimant, not imposed upon him. The lay members observed no objective change in the clarity or manner of his answers after that change.

4. The case differed materially from authorities in which disability was known, established by evidence and required the tribunal to investigate or accommodate an identified disadvantage. ADHD could affect people in different ways; describing a condition as ADHD did not itself generate a fixed list of required adjustments.

5. The adverse comment on the claimant’s willingness to answer straightforward questions was not critical to the result. The central issue was whether the Grade 8 interview scoring was racially discriminatory. The Tribunal’s decision rested on its acceptance of the interviewers’ clear, consistent and measured evidence explaining the scores. Its reasons, including its rejection of the alleged stereotype concerning listening skills, adequately explained that conclusion.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the Employment Tribunal’s dismissal of his direct race discrimination claim.
• Employment Tribunal, Ashford: dismissed the claim after finding that the respondent had established genuine, non-discriminatory reasons for the claimant’s interview scores.