Guernsey: When Does A Mental Impairment Impact On A Tribunal’s Overriding Objective?

Last Updated: 22 September 2014
Article by Emma Parr

This is an interesting question that London's Employment Appeal Tribunal recently faced.

In the recent judgment, the Appeal Tribunal made it abundantly clear that when a judge is confronted by a litigant in person very obviously in a state of emotional distress, that judge must order an adjournment of proceedings to allow the litigant time to recover his lucidity. It is not acceptable to expect that litigant to simply "crack on" as if nothing is wrong.

The case of U v Butler & Wilson Ltd (2014) has been rumbling on through the Employment Tribunals since 2012. What initially began as a seemingly straightforward unfair dismissal claim based on the grounds of sex and sexual orientation, has now transpired into being one of the UK's leading cases on addressing issues of mental impairment during judicial proceedings.

Here, the claimant was a litigant in person who, it was common knowledge, suffered a disability in the form of psychotic episodes (brought on from an earlier diagnosis of post-traumatic stress disorder). During the judicial proceedings a Case Management Discussion was convened in which the litigant attended but suffered a panic attack. The Tribunal concluded that he was unable to proceed and adjourned the Discussion to a later date. The Discussion then took place (on the later date) and directions were made for the provision of additional documents and the exchange of witness statements in advance of the hearing.

The litigant failed to comply with each direction but emailed the Tribunal to advise that the stress from attempting to comply with the directions would trigger psychotic episodes which he could not control. However, he would be appearing in person at the hearing scheduled for February this year and would provide all relevant documentation at that time.

The hearing commenced but the litigant did not appear; the judge made the decision to continue in his absence based on the premise that the Tribunal has an overriding objective to deal with claims expeditiously. After listening to the respondent's defence against the unfair dismissal claim, the judge then struck out the litigant's claims, ruling that he had no reasonable prospect of success.

One hour later (and during the respondent's application for costs) the litigant appeared looking dishevelled and flustered. He apologised for arriving late citing a further psychotic episode as the reason for his tardiness; he also advised that all of his documents and evidence in support of his unfair dismissal claim were still being printed by a stationery supplier's office conveniently located next to the Tribunal building. The litigant failed to produce any medical evidence to confirm his present psychotic state but it was observed from the judge's notes that he was clearly anxious and exhibited considerable signs of extreme disquiet.

The litigant invited the Tribunal to revoke its decision to strike out his claims and hear his evidence (once he had retrieved it from next door); the judge refused to change her mind and the Tribunal's decision was final.

After seeking appropriate legal advice, the litigant appealed against the decision to dismiss his claims on the basis that the judge's failure to adjourn the hearing contravened his right to a fair hearing; she had failed to act in accordance with the overriding objective and the principles of natural justice, placed undue pressure on the litigant to proceed and, most importantly, failed to make a reasonable adjustment on account of his mental impairment. In response, it was contended that the litigant had not adduced medical evidence to confirm the psychotic episode and, in any event, had not asked the judge for an adjournment.

The Appeal Tribunal was not at all sympathetic to the respondent's contentions. In a very stark warning to all concerned, it was decided that a judge, when acting reasonably, must grant a short adjournment to enable the litigant to recover his / her lucidity and sufficient time to obtain the documentation which they would obviously need to reply upon.

It was made expressly clear that anyone conducting a judicial proceeding who is confronted by a person who is plainly unwell should, without question, adjourn the hearing for a brief time to enable that person to recover and present their case. Any need for a person to "crack on" with their application, notwithstanding the evident ill health and lack of relevant documents, is so obviously wrong that it cannot be considered reasonable.

By failing to allow the litigant in person the opportunity to compose himself "laid a trap for the unwary"; it was a complete dereliction of the overriding duty to address matters fairly and did not demonstrate the equal treatment of a disabled person.

Now that his appeal has been allowed, it remains to be seen whether the litigant will continue with his ultimate claim for unfair dismissal, or whether he has simply lost the will to carry on. I also suspect that the respondent will have incurred considerable legal costs in attempting to defend the claim over the last two years and both parties, with a bit of luck, may now see fit to resolve this matter without Tribunal intervention.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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