Rackham v NHS Professionals Ltd UKEAT/0110/15/LA

C suffered from Aspergers syndrome and anxiety.  The parties agreed between themselves what adjustments would be required at the hearing.   As an additional adjustment R offered a written set of questions that it was going to ask in cross-examination.   C sought to answer the questions in writing.  The ET refused permission.    R did not dispute that the ET was under a duty to make adjustments.

Facts

C was suffered from autism at the high end and had been diagnosed as having Asperger’s form of autism.  In addition he suffered from anxiety, which could be severe at times.  R did not accept that he had mild Asperger’s not severe Asperger’s.

C raised his Asperger’s at the outset in his ET1.  A case management hearing was called.   C’s case was one of two that were listed.  Unfortunately C’s case was heard second and C did not feel well enough to wait because of his anxiety.  He also had difficulty with the lighting in the claimant’s waiting room and the colours of the wall.    The Tribunal asked him to provide a GP’s report.  This suggested that he should not have to sit in the waiting room for too long, that he should have simplified questions which were directed through the judge for clarity.  Before the hearing C’s representative wrote asking for an adjournment and indicated that they had concluded that the “only way to take instructions [was] to send Mr Rackham away with a short list of questions, give him time to collect his thoughts and await his response by email.”

At the hearing the ET decided to adjourn and directed C to obtain an expert’s  report.   R declined to pay for the report.   C consented to the release of his medical records and asked whether the ET might pay for a report.  The ET refused to pay for the medical report.

Before the resumed hearing R proposing that the following adjustments be made:

• C be permitted to wait in a separate waiting room;
• Judge and Counsel simply their questions to C;
• Where clarification is necessary they be put through the Judge to C;
• Judge and Counsel have the relevant guidance from the Equal Treatment Bench Book.

C agreed with R’s suggested adjustments.

Before the hearing of the live issues and in an attempt to be constructive and helpful R’s coursel offered C a note of the questions she was proposing to ask.  They were in 49 numbered paragraphs (some paragraphs containing 3 or 4 questions).  These were volunteered not requested.  C then sought an adjournment on the basis that further adjustments were required.  It was suggested that the hearing be adjourned so that he could answer R’s questions  in writing.

Held

The ET rejected the application and stated that there was simply no evidence that the adjustments suggested by C and his GP would not be adequate.

C appealed.  He argued that the judge had failed to apply the Equal Treatment Bench Book (in particular para. 19, Chapter 7).   C also argued that the Tribunal was under a duty to make reasonable adjustments because the United Nations Convention on the Rights of Persons with Disabilities had become adopted as an additional Treaty of the European Union by virtue of the European Communities Act 1972 and therefore had the status of European Law which was binding on the ET (see Article 13 of the Convention).   The ET had identified a need for expert evidence and was obliged to procure the report if C could not afford it.  This was necessary to do justice between the parties and to ensure a fair and proper access to the court (Article 6 of the European Convention on Human Rights and Fundamental Freedoms).

R accepted that there was an obligation on the ET to make adjustments.  R’s position that the particular route by which the obligation rested upon the ET was unimportant “because there can be no dispute” that there was such an obligation.  It might be through the operation of the UN Convention, or through the Equal Treatment Directive or simply as an expression of common law fairness.

The parties therefore agreed that the duty to make adjustments applied to the ET (this is perhaps surprising since Schedule 3, para.3 of the Equality Act 2010 explicitly provides that the duty to make adjustments does not apply to the exercise of a judicial function – see further below).  Longstaff J comments at para.36 that “the purpose of making an adjustment as being to overcome such barriers so far as access to court is concerned, in particular to enable a party to give the full and proper account that they would wish to give to the Tribunal, as best as they can be helped to give it.”

The principle dispute in this case was whether the ET erred in law by not providing adequate adjustments in order to ensure a fair hearing.   The parties were not agreed about what test should be used to determine that question.  C argued that the EAT should determine for itself whether a fair procedure was followed.  R argued that the Wednesbury unreasonable test should be applied (following Associated Provincial Pictures Houses Ltd v Wednesbury Corporation [1994] 1 KB 223).  

The EAT held that the question it had to ask was whether, taking into account the whole picture and the perspective of both parties, there was any substantial unfairness to the Claimant.   In the circumstances of this case the ET was entitled to come to the view that the agreed adjustments would be sufficient and that the GP’s endorsement of the agreed adjustments was an indication that they were sufficient.

The EAT was asked in this case to hand down guidance for the benefit of other employment tribunals.   In responding the EAT set out three points:

1. Each case must be treated as an individual;
2. Considerable value should be placed on the integrity and autonomy of the individual.  Those with disabilities are fully entitled to have their voice listened to, whatever they might be saying;
3.  ETs should give consideration to having a preliminary hearing to determine what adjustments the ET should adopt in order to best establish the rights of the parties before it.

Comment

This is an odd case.  The parties and the EAT accepted that some sort of duty applied to the EAT.  It is difficult to identify from the judgment what that duty was.   If it was a duty to make adjustments, the EAT fell into its own trap of failing to follow the now well know steps set out in Environment Agency v Rowan.  Equally, it would be odd if the EAT was tasked with conducting a formal review of whether the ET had failed to make reasonable adjustments in the strict sense set out in the Equality Act 2010.  The reason for this uncertainty is because there is almost no discussion of precisely what the obligation on the ET is and the EAT does not set out why or how the duty is said to arise.  This is also particularly interesting because Schedule 3, para.3 of the Equality Act 2010 provides that s.29 (duties of public bodies) does not apply to the exercise of a judicial function.

In the end this judgment is best seen as an application of the rule of natural justice that requires ETs to behave fairly.   That would be more consistent with the sort of untechnical (in a factual sense) review of the ET’s decisions below.  Clearly a disabled person for whom the Tribunal makes no adjustments would not be able to participate on an equal footing with the other party.    Where this occurs natural justice requires the ET to consider what adjustments can be made to allow the person concerned to participate in as full a way as possible.

The 3 points of guidance should be borne in mind by tribunals.   It will be interesting to see how the ET deals with a case in which disability is disputed but where the C in question asks for the ET to make adjustments for the hearing.  Will this require two preliminary hearings – one to determine whether the ET should make adjustments and one to determine whether C is disabled?

The full transcript is available here:  Rackham v NHS Professionals Limited