The Claimant, who was a litigant in person, was dismissed while on long-term sickness absence. She presented claims of unfair dismissal and disability discrimination (sections 15 and 21). It was a part of her case that there were other roles available that she would have been well enough to carry out. When she presented her claim she referred to her appeal against dismissal, which had yet to be heard. Subsequently the appeal was heard and dismissed. The grounds of resistance then referred to the dismissal decision and the appeal hearing and outcome. Subsequently there was a case management preliminary hearing at which the issues in the case were considered.
The Tribunal hearing the full merits hearing, conducted it on the understanding that the disability discrimination claims extended to the appeal outcome. However, it became apparent from the way in which the Claimant was cross-examined, that the Respondent’s position was that those claims were confined to the original decision to dismiss. The Tribunal raised the issue, and asked the Claimant whether she wished to make an application to amend. The Claimant did so, and the application was granted. The Respondent applied for the Tribunal to recuse itself on the basis that, in its handling of this aspect, and the way that it had questioned the manager who heard the appeal about issues relating to disability, it had descended into the arena. The Tribunal refused to recuse itself.
The Respondent’s appeal against both the amendment and recusal decisions was dismissed. Given the particular way in which this litigation had unfolded, the Tribunal had not shown apparent bias. Its questions to the witness were premised on its understanding that there were live disability discrimination claims in relation to the appeal decision, and sought fairly to elicit and clarify his evidence on matters relating to that. Its approach to the emergence of an issue regarding the scope of the disability discrimination complaints was fair to both sides. Its decision on the amendment application was reached by a proper application of Selkent principles, including taking account of the late stage at which it was made, how that had come about, and fairly addressing the potential prejudice to the Respondent of granting it at that stage.
[2020] UKEAT 0242 – 19 – 0402
Bailii
England and Wales
Employment
Updated: 12 November 2021; Ref: scu.653267