EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
DISABILITY DISCRIMINATION
The Claimant suffered from Asperger’s syndrome. A Judge decided at the second of three Preliminary Hearings that there should be a report from an expert, not a GP, as to the nature of his disability and adjustments it would be reasonable to make to enable participation in a third Preliminary Hearing. The parties could, or would, not fund it. Accordingly, the Judge thought it proportionate as a first step to obtain the medical records of the Claimant. They were provided. The parties then agreed between themselves what adjustments would be needed for the hearing. At the hearing, as an additional adjustment prompted by the Equal Treatment Bench Book, counsel for the Respondent offered a written list of the questions she intended to ask in cross-examination. Having failed to secure an amendment to the claim, the Claimant then applied to answer the questions in writing, and at home, and sought a postponement to obtain an expert report on appropriate adjustments. The application was refused.
Held: The duty to make reasonable adjustments, for the purpose of ensuring access to and participation in the proceedings, was undisputed. The question was whether there was an error of law in providing inadequate adjustments by failing to consider what an expert might say. Whatever approach was taken (whether assessing fairness, review, or a hybrid, proportional approach as considered in R (Daly) v Secretary of State for the Home Department), there was no error of law here. The Judge had considerable material on the basis of which he could conclude that the adjustments proposed would be reasonable so as to ensure that the hearing would be fair, which included the agreement of the parties: the Claimant’s agreement to the measures proposed should be respected since he had autonomy to make it. There was nothing to suggest the measures were inappropriate. Unfairness had to be judged by reference to both parties, to proportionality and with a view to expedition, and the judgment of the Judge, if not conclusive, was entitled at the very least to considerable weight. There was no failure to follow the Equal Treatment Bench Book.
Langstaff P J
[2015] UKEAT 0110 – 15 – 1612
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565095