Was it lawful for an employment tribunal to refuse a disabled litigant in person’s request that he be allowed to record a three-day preliminary hearing?
No, held the EAT in Bella v Barclays Execution Services. The Claimant was disabled. His disabilities included PTSD, sleep problems, anxiety, and depression.
A three-day preliminary hearing was arranged to decide if the Claimant’s claims should be struck-out. The Claimant asked to record the hearing. He claimed that this adjustment would lessen his cognitive load and allow him to take part in the hearing. He provided supporting evidence from his cognitive behavioural therapist.
The tribunal refused his request, relying on the fact that the Claimant had taken part in other hearings which had not been recorded. The tribunal placed little weight on the evidence of the Claimant’s therapist as she held ‘no clinical qualifications’. The Claimant appealed.
The EAT held that the adjustment should have been made and the tribunal’s decision to refuse it was unlawful. In reaching this conclusion, the EAT noted:
- a tribunal has a duty, as an organ of the state, to make reasonable adjustments to accommodate the disabilities of claimants.
- the tribunal should have asked itself whether the requested adjustment would have removed the Claimant’s disadvantage.
- the tribunal was too ‘dismissive’ of the supporting evidence of the Claimant’s therapist.
- the alternatives suggested by the tribunal (that the tribunal record the hearing or that the Claimant could take a written note) would not have removed the disadvantage – the Claimant could not take a note given his difficulties and would not have had immediate access to the tribunal’s recording.
- there was no suggestion that the recording would disrupt the hearing.
- the Respondents did not object.
- There was no evidence that the Claimant would use the recording for a prohibited purpose.
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