Royal Bank of Scotland Plc v AB

Where there is objectively good cause for concern that a litigant may lack capacity to conduct proceedings, a tribunal should arrange an assessment. The presumption of capacity in section 1(2) of the Mental Capacity Act 2005 does not require lack of capacity to be established before an assessment can be ordered.

An error in failing to obtain such an assessment does not automatically invalidate contested proceedings or require remission. The assessment serves to determine the proper conditions for participation, not to assist either party’s substantive case. Reasons are adequate if they explain why the decision was reached; a tribunal need not address every submission advanced.

AB succeeded before the Employment Tribunal in claims for unfair constructive dismissal and disability discrimination. At a remedies hearing, the Tribunal awarded substantial compensation for psychiatric injury and care needs.

RBS appealed the remedies decisions. It challenged the refusal to obtain an assessment of AB’s litigation capacity, the finding that AB had not exaggerated her symptoms, causation and compensation, and the adequacy of the Tribunal’s reasons for preferring one psychiatric expert. RBS withdrew other grounds.

The central issue was whether the failure to assess capacity required the remedies proceedings or compensation award to be reopened.

1. Appeal allowed in part. The appeal succeeded only on the challenge to the Tribunal’s refusal to reconsider its earlier refusal to order an assessment of AB’s litigation capacity. No matter was remitted and the compensation order stood, subject to the parties’ agreed interest adjustment.

2. The Tribunal had applied the presumption in section 1(2) of the Mental Capacity Act 2005 incorrectly. The issue was not whether AB’s lack of capacity had already been established. It was whether her presentation gave good cause for concern that she might lack capacity and therefore required assessment. Her apparent inability to recognise counsel or answer simple questions plainly met that threshold.

3. The Tribunal also acted irrationally under Rule 29 of the Employment Tribunals Rules of Procedure 2013 when it refused to reconsider. It treated the absence of an expert conclusion on capacity as a reason not to obtain the assessment from which an informed opinion could arise. The original ruling was a case-management order, not a judgment for the purposes of Rule 70.

4. The direct appeal against the original order was out of time. RBS had provided no sufficient explanation for delaying its appeal until written reasons were supplied.

5. The capacity error did not compel an inference that AB had exaggerated her illness. The Tribunal had a permissible evidential basis for finding that her presentation was genuine and that she was not fit to give evidence. Its findings on causation, apportionment and expert preference disclosed no error of law.

6. The procedural error neither rendered the contested remedies proceedings void nor caused unfairness to RBS. Any assessment would have concerned the conditions in which litigation could proceed, rather than providing evidence for RBS’s substantive case.

• Employment Appeal Tribunal: appeal allowed only on the refusal to reconsider a capacity assessment; no remittal was ordered.
• Employment Tribunal: upheld claims of unfair dismissal and disability discrimination in a judgment sent on 12 February 2016. Its remedies judgments, sent on 6 March and 9 April 2018, awarded compensation of £4,670,535, subject to agreed pre-judgment interest.