Dr S Bi v E-ACT

An Employment Tribunal may determine a rule 38(2) application to set aside an unless order on written representations where no hearing is requested. It must nevertheless consider whether fairness, including a party’s known vulnerability, requires an adjustment. A later autism diagnosis does not establish unfairness where the evidence does not show that written procedure disadvantaged the party.

In deciding whether relief is in the interests of justice, the Tribunal must make a broad, fact-sensitive assessment. Relevant medical records may be necessary to determine all heads of remedy, not solely psychiatric injury. A claimant’s refusal to provide relevant disclosure may make a fair remedy hearing impossible, notwithstanding the public interest in compensating established unlawful detriment and victimisation.

The claimant had succeeded at liability stage in claims of protected disclosure detriment and victimisation. Before a remedy hearing, she was ordered to provide consent for full disclosure of her medical records. She did not comply with an unless order requiring that consent, and her claims were dismissed.

The West Midlands Employment Tribunal refused her rule 38(2) application to set aside the unless order on 5 November 2019. After the claimant received an autism-spectrum diagnosis, it also refused her out-of-time reconsideration application on 18 August 2021. She appealed both decisions. The respondent cross-appealed on the scope of the reconsideration application.

The central questions were whether the paper procedures were unfair, whether the Tribunal’s interests-of-justice assessments were flawed, and whether full medical disclosure was necessary for a fair remedy hearing.

1. Appeals and cross-appeal dismissed unanimously. The Tribunal was entitled to decide the rule 38(2) application on the papers. Under rule 38(2) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, an attended hearing was not required unless requested. Neither party requested one, and the Tribunal had given an opportunity to object to the proposed written procedure.

2. The duty to deal fairly with a vulnerable or disabled party can require an adjustment to ordinary procedure. That duty did not require an oral hearing here. The Tribunal knew that the claimant was unrepresented and had some medical difficulties, but had no evidence that she needed to present her case orally. The later autism evidence did not show that she had been prejudiced by written submissions, which she had been able to make clearly and fully.

3. The Tribunal permissibly refused to set aside the unless order. The relevant medical records could affect injury to feelings, pecuniary loss, future employability and the claimant’s credit, as well as any claim for psychiatric injury. The respondent was entitled to seek full disclosure both to test the joint expert evidence and to advance its own case on remedy.

4. The Tribunal was also entitled to find that the claimant had changed her position on consent and would not provide it if relief were granted. Her partial disclosure had been considered but was not material compliance. The resulting inability to obtain and test the full records could prevent a fair trial of remedy. The public interest in compensating proven protected-disclosure detriment and victimisation did not displace that requirement.

5. On reconsideration, the Tribunal followed rule 72(1). Having found no reasonable prospect that its earlier judgment would be varied or revoked, it was bound to refuse the application without a hearing. It was entitled to conclude that the new autism evidence did not outweigh the need for full disclosure or alter the earlier interests-of-justice assessment. The claimant’s application plainly concerned the judgment of 5 November 2019, so the respondent’s jurisdictional cross-appeal failed.

• Employment Appeal Tribunal: The claimant’s appeals from the West Midlands Employment Tribunal decisions of 5 November 2019 and 18 August 2021 were dismissed. The respondent’s cross-appeal was also dismissed.
• Employment Tribunal: The claimant’s claims were dismissed following non-compliance with an unless order. Her application under rule 38(2) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 to set aside that order was refused on 5 November 2019. Her later reconsideration application was refused on 18 August 2021.