P a g e 1 What is the extent of the Employment Tribunal s duty to assist unrepresented litigants in the formulation and presentation of their case? By Kirti Jeram Parklane Plowden Chambers June 2015
P a g e 2 Practitioners in the Employment Tribunal will often experience a wide (and to their clients, no doubt, bewildering) range of approaches by Judges when dealing with parties who appear before them without legal representation. But where does that duty to assist such litigants begin and end? Joseph v Brighton & Sussex University Hospitals NHS Trust The point arose in the recent EAT decision of Joseph v Brighton & Sussex University Hospitals Trust. The appellant contended that the tribunal had essentially failed to have regard to obvious material in the hearing bundle that would have assisted her, as an unrepresented litigant, to establish disability for the purposes of her discrimination claim. She submitted that the tribunal ought to have taken a purposive or inquisitorial approach. The facts of the appeal might be considered somewhat unusual, but are a good illustration of the applicable principles: The claimant identified her disability as stress/depression, and at a later preliminary hearing, added a blood disorder; Pursuant to a case management order, she provided an impact statement in the form of a letter, which gave the barest evidence of the adverse effect of her blood disorder and no specifics about day-to-day activities. It contained only a passing mention of stress and anxiety; In the hearing bundle, there was significant medical evidence to the effect that the claimant s blood disorder had subsisted for over 10 years; that it required medication; that a reduction in work hours that had been medically advised was in fact implemented by the respondent s human resources department. There was more recent medical evidence that
P a g e 3 she had suffered from stress and depression; that her sleep, concentration, memory, appetite and confidence were low; At the hearing itself, the claimant relied only on her witness statement, which was wholly about the respondent s grievance process. It made no references to her disability at all, much less the individual requirements of establishing an impairment which had a substantial adverse effect on her normal day to day activities; it did not cross refer to any of the medical evidence in the bundle. She did not attest to her impact statement as part of her evidence and no additional evidence in chief was adduced. Unsurprisingly, counsel for the respondent chose not to cross-examine the claimant on the subject of disability; The Tribunal found that the claimant had failed to adduce any evidence of her disability (but also that the respondent had no knowledge of it, in any event). On appeal, the EAT commented that, given the state of the evidence, unless, as the claimant contended, there did exist a duty on the tribunal to adopt an inquisitorial or purposive approach, the decision could not be faulted. No such duty exists, and there are sound reasons as to why, held HHJ Richardson at the EAT, quoting from Mensah v East Hertforshire NHS Trust and Muschett v HM Prison Service. In summary: Tribunals are strongly encouraged to be as helpful as possible to litigants in formulating and presenting their cases; That may extend to clarifying which matters are pursued or abandoned; it must be for the judgment of the particular tribunal in the particular circumstances of the case before it whether of its own motion it should investigate any pleaded complaint which it is for the litigant to prove, but he is not setting out to prove;
P a g e 4 The desirability in giving assistance to litigants in person must always be balanced against the need to avoid injustice or hardship to the other party; The need to balance the interests of the parties is in itself a very good reason for holding that the manner and extent of any assistance should be treated as a matter of judgment and not elevated to an error of law. Once the parties place the evidence before the tribunal, it is the function of the tribunal to make findings and decide the case in accordance with the law; it is not their function to step into the factual and evidential arena; Rule 41 of the 2013 Employment Tribunal Rules is consistent with Mensah and Muschett: The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts. Drysdale v Department of Transport (Maritime and Coastguard Agency) The recent CA decision in Drysdale was not cited in Joseph, but contains further useful guidance on question of the extent to which a tribunal might be expected to provide assistance to a litigant in person.
P a g e 5 The appeal arose in circumstances where, during the hearing, the claimant s wife, who represented her husband, unexpectedly announced her intention to withdraw her husband s claim. The tribunal was aware that the claimant s wife had diabetes. She contended that the tribunal ought not to have so readily dismissed his claim, and appreciated the possibility that she was, or might be, indisposed so that her judgment was or could be affected. Barling J summarised various authorities, including Mensah, at para 49 of the decision thus: (1) It is a long-established and obviously desirable practice of courts generally, and employment tribunals in particular, that they will provide such assistance to litigants as may be appropriate in the formulation and presentation of their case. (2) What level of assistance or intervention is appropriate depends upon the circumstances of each particular case. (3) Such circumstances are too numerous to list exhaustively, but are likely to include: whether the litigant is representing himself or is represented; if represented, whether the representative is legally qualified or not; and in any case, the apparent level of competence and understanding of the litigant and/or his representative. (4) The appropriate level of assistance or intervention is constrained by the overriding requirement that the tribunal must at all time be, and be seen to be, impartial as between the parties, and that injustice to either side must be avoided. (5) The determination of the appropriate level of assistance or intervention is properly a matter for the judgment of the tribunal hearing the case, and the creation of rigid obligations or rules of law in this regard is to be avoided, as much will depend on the tribunal's assessment and feel for what is fair in all the circumstances of the specific case.
P a g e 6 (6) There is, therefore, a wide margin of appreciation available to a tribunal in assessing such matters, and an appeal court will not normally interfere with the tribunal's exercise of its judgment in the absence of an act or omission on the part of the tribunal which no reasonable tribunal, properly directing itself on the basis of the overriding objective, would have done/omitted to do, and which amounts to unfair treatment of a litigant. Conclusion The duty under to seek to avoid formality at rule 41, is not to be equated to a duty give any particular measure of assistance to unrepresented litigants. It is one thing to say that the provision of assistance is permissible, desirable, even, but quite another to elevate that to a legal principle. Whilst, at first glance, the proceedings in Joseph do appear to be unduly formal, the claimant s interests cannot be seen in isolation; they must be balanced against the legitimate expectation of a legally represented respondent who has chosen to present its case in a particular manner. The tribunal should be sensitive to the disadvantages faced by unrepresented litigants, and may, for example, grant adjournments in circumstances where no like adjournment would be granted to a represented litigant. It might exercise a degree of indulgence during the examination of witnesses, or alternatively, take of a firm line in keeping with the issues. But there are limits to what evidence should be adduced; it is not the tribunal s function to step into the arena on the litigant s side to enable him or her to make a better case. Ultimately, any challenge to the tribunal s conduct will require a party demonstrate perversity in the exercise of its judgment, having regard in particular to the considerations set out in Drysdale.
P a g e 7 Cases referred to Joseph v Brighton & Sussex University Hospitals NHS Trust UKEAT/0001/15/JOJ, EAT Drysdale v Department of Transport (Maritime and Coastguard Agency) [2014] IRLR 892, CA Muschett v HM Prison Service [2010] IRLR 451, CA Mensah v East Hertfordshire NHS Trust [1998] IRLR 531, CA