MR  G NYATHI -v- SECRETARY OF STATE FOR JUSTICE (UKEAT/0229/17)

OVERVIEW

This case looks at the “reasonable adjustments” that an Employment Tribunal can be expected to make for a disabled party pursuant to section 20 of the Equality Act 2010. It also considers the need for an Employment Tribunal Judge to cause a telephone call to be made to enquire about the absence of a party at a hearing. 

BACKGROUND 

The Claimant started working for the Respondent in 2006. In October 2011 he was diagnosed with having depression and was off work on several occasions starting in January 2013. Whilst still absent from work due to health problems in 2014 the Claimant brought a claim against his employers (the Government Legal Department) for race discrimination, harassment, victimisation and breach of section 10 Employment Relations Act 1999. 

In November 2014 the Claimant was examined by a consultant occupation physician who concluded that the Claimant’s condition did not amount to a disability under the Equality Act 2010. However, the physician indicated that the Claimant’s symptoms may amount to a disability if it did not improve over the next few months. The Claimant was off work intermittently but did not return to work again after December 2015.

FIRST EMPLOYMENT TRIBUNAL HEARING 

In 2016 the claim was heard at the Employment Tribunal. The hearing ran for 14 days and the Claimant represented himself. During the course of the hearing, a psychiatrist gave evidence stating that the Claimant has “a psychiatric condition with high levels of anxiety as the main symptom.” The psychiatrist mentioned that the process of representing himself is likely to have a detrimental effect on his mental health.  

The Claimant argued that his employers attempted to force him into early retirement due to ill health (“ill health retirement”). The Tribunal found no evidence to support that claim. In fact, the tribunal dismissed all the Claimant’s claims. 

In April 2016 the Claimant was again assessed by another consultant occupational physician who concluded that the Claimant was unfit for work and was likely to remain permanently unfit to continue his job at the Government Legal Department. The Claimant retirement age was 60 and he turned 60 in February 2016 (during his Employment Tribunal hearing).

SECOND EMPLOYMENT TRIBUNAL HEARING 

Following the dismissal of the Claimant’s claims after the initial 14-day hearing that concluded in February 2016, the Claimant brought another claim in October 2016 for unfair dismissal, race and disability discrimination. It appeared to the Tribunal that the second claim was regarding issues that had already been litigated at the initial hearing.  

In November 2016 the Tribunal ordered the Claimant to provide a schedule of loss, but the Claimant failed to provide the schedule. A date was then scheduled for a preliminary hearing — the Claimant asked for an adjournment because he needed more time and in order to obtain legal advice. This request was denied by the Employment Judge on the grounds that the Claimant has not provided any medical evidence to support this request. On the day of the preliminary hearing, the Claimant was 45 minutes late. He explained to the Judge that he misread the hearing time on the notice of hearing.

At the preliminary hearing, the Judge made a number of orders requiring the Claimant to provide details particularising his claim for race and disability discrimination. He was also ordered to provide further details in relation to the pay he was claiming. The Claimant complied with some aspects of the order but did not particularise his claims for race and disability discrimination as ordered by the Judge. At the preliminary hearing, the Judge encouraged the Claimant not to delay proceedings and highlighted places where the Claimant may be able to obtain free legal advice and assistance. 

In February 2017 the Claimant applied to stay proceedings until he obtained legal advice. This application was denied by an Employment Judge. The Judge also made an unless order. The unless order provided that the race and disability claims would be struck out unless the Claimant particularised those claims before a specified date. The order also stated that the monetary claims would be struck out within 12 days unless the Claimant provided “persuasive reasons” why the money claims should not be struck out. The Claimant did not particularise his claims for race and disability discrimination and did not provide “persuasive reasons” why the monetary claims should not be struck out. As a result of non-compliance with the unless order the claims for race and disability discrimination and the monetary claims were all struck out.

In March 2017 the Claimant asked the Tribunal to reconsider the strike out decision. In effect, the Claimant suggested that he could not conduct the proceedings due to his ill health and that he required legal assistance for which he was still searching. The Employment Judge ordered the Claimant to provide medical evidence to support his applications to stay the proceedings and to reconsider the claims which were struck out. The Claimant provided medical reports which confirmed that he remained unwell and that the Tribunal proceedings were contributing to the stress that the Claimant was experiencing. Consequently, the application to stay the proceedings was rejected because the reports did not say that the Claimant was unable to comply with the directions or unable to attend the preliminary hearing. The Claimant repeated his application to stay the proceedings on the basis of his poor health and his difficulty in dealing with complex legal proceedings due to his poor health. This further application was also rejected.

A preliminary hearing was later held on 31 May 2017, but the Claimant did not attend this hearing. The Claimant said that he did not attend the hearing because the notice of hearing referred to the Judge sitting alone. Although this meant that the Judge will sit without lay members the Claimant said that he assumed that the parties were not required to attend that hearing. The Judge proceeded with the hearing in absence of the Claimant.

APPEAL TO THE EMPLOYMENT APPEAL TRIBUNAL (EAT) 

On appeal, the Claimant argued that the Tribunal failed to make reasonable adjustments for his disability as required by section 20 of the Equality Act 2010. The EAT accepted the medical reports which concluded that the Claimant was unfit to work. However, the EAT held that the Claimant’s unfitness to work does not in itself mean that the Claimant was unable to attend the hearing. The EAT noted that the medical reports did not say that the Claimant was unable to prepare written submissions or represent himself at a hearing. The fact that the Claimant represented himself at the initial 14-day hearing and prepared documents further indicate that the Claimant was indeed able to represent himself at the second hearing for which he was seeking a stay of proceedings.

Further, the EAT noted that the Employment Tribunal had made several reasonable adjustments, including informing the Claimant of possible sources of legal advice and assistance, advising the Claimant not to delay the matter, issuing an unless order, converting one of the preliminary hearings to a telephone hearing, informing the Claimant that he needed to particularise his claims for race and disability discrimination, allowing the Claimant more time to provide medical evidence to support his application for a stay of proceedings. 

On the second ground of appeal, the Claimant contended that the ET Judge ought to have taken steps to ascertain why he had not attended the hearing on 31 May 2017. The EAT accepted the Claimant’s submission on this ground of appeal. The EAT held that there could have been several reasons why the Claimant did not attend the hearing on 31 May 2017, including mistake as to the requirement for him to attend, falling ill, transport-related problems, and misunderstanding of the time of the hearing (which had happened in relation to an earlier hearing). The EAT concluded that given these possibilities the Judge erred in law in failing to cause a telephone call to be made to the Claimant to enquire about his absence from the hearing. The ET Judge erroneously decided that the Claimant deliberately absented himself from the hearing. Nonetheless, the EAT held that this error of law has made no difference to the outcome because if the Claimant had attended the hearing on 31 May 2017 he would have repeated his application for stay of the proceedings and that application had no prospect of success.

The EAT found that the Claimant’s claim had no merit, especially as he still had not particularised his claim for race and disability discrimination. Also, the Claimant had not provided reasons for not striking out his claims or reasons for not striking out his unfair dismissal claim. Indeed, the EAT noted that the Claimant was attempting to revive issues that had already been litigated at the initial 14-day hearing which the Claimant is not entitled to do. The Claimant’s appeal was dismissed.