F Habib v Dave Whelan Sports Limited t/a DW Fitness First

An employment tribunal’s duty to secure a fair hearing for a disabled or vulnerable party extends to its deliberations and credibility findings. Where dyslexia or another specific learning difficulty may explain apparent inconsistencies, difficulty understanding questions, or other aspects of a witness’s presentation, the tribunal must consider the relevant guidance and explain any conclusion that nevertheless relies on those matters adversely.

Evidence is ordinarily needed to identify the particular barriers caused by a disability and the adjustment capable of alleviating them. Expert evidence is not invariably required. However, an obvious difficulty during the hearing may require the tribunal to explore it. A fundamental failure to make the required adjustment to the tribunal’s assessment of evidence renders the hearing unfair and requires a complete retrial.

The Claimant brought claims for discrimination because of age, sex and religion or belief, harassment, less favourable treatment as a part-time worker, and victimisation. The Employment Tribunal dismissed all claims in a reserved judgment sent on 19 October 2020.

The Claimant, who was dyslexic and whose first language was not English, appealed. She alleged that the Tribunal had failed to afford her a fair hearing, including by failing to apply guidance for vulnerable witnesses and by treating features of her evidence as adverse to her credibility without addressing whether they arose from dyslexia.

The Employment Appeal Tribunal allowed ground 8. The central issue was whether the Tribunal’s approach to the Claimant’s participation and credibility rendered the hearing substantively unfair.

1. Appeal allowed. The Employment Tribunal’s approach to the Claimant’s credibility rendered the hearing unfair. The entire case had to be heard afresh, so the Employment Appeal Tribunal did not determine the remaining grounds which would have involved comment on findings that could no longer stand.

2. The duty to ensure effective access to justice for a disabled party extends beyond the conduct of the hearing to the tribunal’s analysis and deliberations. Professional representatives will normally identify needed adjustments, but the tribunal retains ultimate responsibility for fairness: [2019] EWCA Civ 815.

3. Whether an adjustment is required depends on evidence identifying the specific barrier caused by the condition and how the adjustment would alleviate it. That evidence need not always be expert evidence. The three particular adjustments sought by the Claimant did not, on the limited material available, establish a separate failure to make reasonable adjustments. A tribunal must nevertheless explore an obvious difficulty demonstrated by a witness.

4. The Tribunal knew that the Claimant was dyslexic, had been alerted at case management to the need for allowances, and had permitted assistance with finding documents. It then made detailed adverse credibility findings from inconsistent understanding, document use and apparent performance during evidence. Those were matters which the Equal Treatment Bench Book identified as potentially arising from dyslexia.

5. The Tribunal did not refer to the Presidential Guidance or the Equal Treatment Bench Book, nor did its reasons show an analysis of why the guidance did not explain the behaviour on which it relied. The Claimant had not been fairly alerted that the existence or extent of dyslexia was in issue, and had no opportunity to adduce evidence on it. The reasons were not Meek compliant. More fundamentally, the absence of the required adjustment to the Tribunal’s evaluative analysis made the hearing unfair.

6. Following [2020] 1WLR 2455, an unfair trial requires a complete retrial. The claim was therefore to start afresh before a new tribunal panel.

• Employment Appeal Tribunal: Allowed the appeal on ground 8 and required the whole case to start afresh before a new tribunal panel.

• Employment Tribunal: In a reserved judgment sent on 19 October 2020, rejected all of the Claimant’s claims.