Leslie Easton & Co Ltd & Anor v Tina Donlon

Where a party’s capacity to give evidence or participate in proceedings gives rise to legitimate doubt, a tribunal should investigate the issue when it arises. The presumption of capacity does not remove that responsibility.

An adjournment to obtain appropriate medical evidence may be required. The tribunal should not resolve the issue by questioning the person about their own cognitive abilities, or treat a representative’s professionally expressed concern as insincere without an adequate basis. A failure to investigate may invalidate a finding that the party deliberately chose not to give evidence.

The claimant succeeded before the Employment Tribunal on claims of sexual harassment and victimisation against her employer and its director, Leslie Easton. Her dismissal claims were withdrawn and dismissed.

During the liability hearing, the respondents’ representative became concerned that Mr Easton, who had suffered a stroke, was not fit to give evidence or participate. He sought an adjournment for a joint medical expert to assess that issue. The tribunal refused the application and treated Mr Easton as having chosen not to give evidence. It upheld the claims and awarded compensation.

The respondents appealed solely on the refusal to adjourn for investigation of Mr Easton’s fitness to give evidence. Mr Easton had died by the appeal hearing, which continued through his estate.

1. Appeal allowed. The Employment Tribunal erred in refusing an adjournment to investigate Leslie Easton’s capacity or fitness to give evidence. There was good reason for concern and legitimate doubt: he had suffered a serious stroke, and his representative became concerned after a marked inconsistency between prior instructions and what Mr Easton said when called.

2. The guidance in the Equal Treatment Bench Book was relevant although the application had not used the technical word “capacity”. Where legitimate doubt arises, the presumption of capacity cannot avoid an assessment. The tribunal ought to have allowed time for medical evidence addressing fitness to give evidence.

3. The issue had not been raised earlier, but that did not answer the doubt which arose during the hearing. It was insufficient for the tribunal to assess the issue by asking Mr Easton questions about his medical history and cognitive abilities. Its suggestions that the representative might not have taken proper instructions, or that his concerns might not be genuine, lacked an adequate basis and were unfair to him.

4. The error undermined the tribunal’s conclusion that Mr Easton had chosen not to give evidence. The EAT could not hold that an adjournment would have made no difference. A report might have enabled Mr Easton to give evidence, or established genuine inability, in which event adverse inferences based on a deliberate choice would not have been appropriate.

5. The findings on sexual harassment and victimisation were remitted for a fresh hearing before a differently constituted tribunal. That tribunal must decide what inferences, if any, may properly be drawn from the absence of Mr Easton’s evidence and reconsider the claimant’s evidence. The earlier time-limits decision was not remitted because it had not been appealed.

• Employment Appeal Tribunal: Allowed the respondents’ appeal and remitted the main liability issues to a newly constituted Employment Tribunal: [2024] EAT 126.
• Employment Tribunal (London South): By judgment dated 20 May 2022, upheld sexual-harassment and victimisation claims and awarded £19,000 compensation. The dismissal claims had been withdrawn and dismissed.