Vulnerable Witnesses in Employment proceedings – June 2021

June 28, 2021

Vulnerable Witnesses

Earlier this year, whilst preparing for a final hearing in a claim under the Equality Act 2010 it was necessary for me to look at the Tribunal’s approach to making reasonable adjustments at a final hearing. Guidance on a Tribunals requirement to make reasonable adjustments at hearings is found in Rackham –v- NHS Professionals Limited UKEAT/0110/15.

In this case the claimant suffered from Asperger’s syndrome. A judge ordered an expert report to deal in part with what adjustments were reasonable to enable the Claimant’s participation in the hearing, but funding was not forthcoming. At a hearing the parties including the Claimant agreed reasonable adjustments based on a GP’s report and after consulting the Equal Treatment Bench Book. In addition, the respondent’s counsel offered a list of intended cross-examination questions in advance.

The EAT laid down guidance for future cases as follows:

  • what is reasonable must be tailored to the needs of the individual before the tribunal;
  • if a person is entitled to make a decision affecting the conduct of their case makes a decision, it is not in general for a court to second-guess that decision;
  • emphasis should be given to holding Ground Rules Hearings where appropriate.

I was greatly assisted by the materials which are provided free by The Advocate’s Gateway (TAG) https://www.theadvocatesgateway.org/. TAG provide practical, evidence-based guidance on vulnerable witnesses and defendants. I found three Tool Kits of particular assistance:

  • Tool Kit 1 which is primarily about criminal proceedings but has some very useful information about Ground Rules hearings.
  • Toolkit 15 which addresses issues relating to witnesses and defendants with autism, memory and sensory issues.
  • Toolkit 19 which addresses supporting participation in Courts and Tribunals.

If you are involved in a case where reasonable adjustments are likely to be necessary at the final hearing, then I would suggest the following by way of general guidance:

  1. Consult the relevant TAG Tool Kits.
  2. Give consideration as to whether medical evidence is likely to assist in deciding what adjustments might be required.
  3. Remember it is the party who is likely to require the adjustments who is best placed to say what they should be.
  4. Ask the Tribunal for a Ground Rules hearing in good time prior to the final hearing. This can be done in the agenda for the case management hearing or if there is no case management hearing then by writing directly to the Tribunal and the other party.
  5. Ensure the time estimate for the Case Management hearing is sufficient to deal with the question of reasonable adjustments.
  6. Make allowance in the time estimate for the final hearing for any extra time adjustments may add to the length of the hearing.
  7. Reach agreement, if at all possible, on the necessary adjustments.
  8. Make sure that any adjustments required prior to the hearing such as written questions are completed in good time prior to the final hearing.
  9. At the beginning of the final hearing ensure everyone understands the ground rules for the hearing.

Peter Doughty

 

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Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Town and Village Greens, Will Disputes