Tribunals and Courts should make reasonable adjustments for disabled claimants

In a recent case the Employment Appeal Tribunal (EAT) offered guidance to employment tribunals when hearing cases involving disabled claimants.

 

Where a claimant appearing at a tribunal has a disability, the tribunal may be faced with difficulties, and adjustments to the usual running of the case may be necessary. It should be noted that all individuals are entitled to a fair and public hearing as per Article 6 of the European Convention on Human Rights, which is given effect to by the Human Rights Act 1998. The United Nations Convention on the Rights of Persons with Disabilities provides for ‘reasonable accommodation’ to ensure that those with disabilities can exercise their human rights.

 

In the case in question the claimant who had Asperger Syndrome was bringing a claim for unfair dismissal and discrimination. In circumstances where the claimant had a disability, the claimant’s GP was consulted and there were discussions as to whether the claimant could attend a preliminary hearing. A medical report was ordered, however the claimant could not afford this and the tribunal did not offer to fund the report. It was however suggested by the tribunal that medical records should be released, and if it was necessary after that point, a report would be prepared.

 

The parties had agreed appropriate adjustments for the claimant which he had in fact suggested. These adjustments included a separate waiting room not used by other claimants, for the judge and counsel to simplify questions if requested to do so, questions to be channelled through the judge where clarification was required and for the judge and counsel to have with them the Equal Treatment Bench Book.

 

The EAT held that the tribunal was not wrong to reject a request to postpone the hearing for further adjustments to be made because the claimant had already agreed what adjustments would be suitable.  The purpose of an adjustment would be to enable those with a disability to overcome difficulties in exercising their human rights. Also relevant was that the claimant had appeared before a type of tribunal previously and his disability was relatively mild.

 

The EAT gave some important guidance for courts and tribunals in similar situations. Tribunals should hold a preliminary ‘ground rules’ hearing where appropriate adjustments should be discussed. The autonomy of the individual should be respected, the needs and requests of the individual should not be ‘second guessed’ and each case should be considered on an individual basis; meaning that the needs of that particular individual should be considered.

 

It is important for employers to take note of the possible adjustments which may be allowed during similar types of proceedings as the recent case.