Stott v Leadec Ltd

The Employment Appeal Tribunal has power to regulate its procedure to appoint a litigation friend where an adult lacks litigation capacity. The EAT should apply the CPR Part 21 test of capacity and be guided by Part 21 procedures when appropriate. Capacity is time- and context-specific and usually requires medical evidence. Where there is reason to suspect incapacity, tribunals should investigate promptly and obtain a focused medical report before proceeding.

The appellant appealed an employment tribunal judgment dismissing discrimination and unfair dismissal claims. At a preliminary hearing the ELAAS representative raised concerns about the appellant's capacity to litigate. Medical material and prior orders from other proceedings suggested possible incapacity. The EAT adjourned the preliminary hearing and directed a medical capacity report and details of a proposed litigation friend. The central issue was whether the EAT has power to appoint or direct appointment of a litigation friend and what procedure should follow when incapacity is suspected.

(1) The appeal hearing was adjourned and directions were made for a medical report and proposed litigation friend so the EAT can determine capacity before proceeding. (2) By section 30(3) of the Employment Tribunals Act 1996 the EAT may regulate its procedure, subject to the EAT Rules and Practice Direction. That power, read with the Practice Direction (para 13.1) and rule 1.8 (guidance from the CPR), permits the EAT to give case management directions to secure fair proceedings, including directions necessary to enable the appointment of a litigation friend where capacity is lacking. (3) The appropriate test of litigation capacity is that in CPR Part 21 and Masterman-Lister: whether the litigant can understand, with proper explanation, the issues where consent or decision will be required and can use or weigh that information. Capacity is time- and context-specific and usually requires medical evidence. (4) Employment tribunals and the EAT should investigate capacity where there is reason to suspect incapacity. A focused medical report will normally be required before deciding that a party lacks capacity. (5) It would be incompatible with the overriding objective, the common law duty of fairness and the Human Rights Act 1998 to proceed with a hearing where a party lacks litigation capacity without appropriate safeguards. (6) The EAT observed the urgent need for clearer rules governing protected parties in tribunal proceedings and encouraged the relevant rule‑making bodies to address this issue promptly. Orders: preliminary hearing adjourned; directions for a medical report and for provision of details of a proposed litigation friend; file to be reviewed on receipt of those materials and relisted as appropriate.

• Employment Tribunal (first instance) – Judgment sent 9 July 2018; claimant's claims dismissed and costs ordered against claimant (see Judgment, paras 2–6).
• Employment Appeal Tribunal – This judgment: adjourned preliminary hearing; directed medical report and proposed litigation friend and remitted file for further directions.