When hearing a claim from someone with a disability, the Employment Appeal Tribunal (EAT) held in Habib v Dave Whelan Sports Ltd t/a DW Fitness First that tribunals must take into account the guidance provided on vulnerable witnesses with regard to the steps they should take and the adjustments they should make to ensure the person can participate fully in the process.
Tribunal hearing
Ms Habib, who has dyslexia, lodged a claim for equal pay which her employer asked the tribunal to strike out. At a case management hearing to sort out the logistics needed for a final hearing, she made clear that she would need questions to be asked in a way that took account of her disability.
Just before the final hearing the tribunal refused to accept her bundle of evidence although it said she could add relevant documents to the employer’s bundle. It also refused her request for an intermediary to help her express herself, although it allowed the intermediary to help her find page numbers in the evidence bundle and ensure that she understood what she was being asked. Towards the end of the hearing, the tribunal refused her barrister’s request to introduce medical evidence.
Dismissing her claims, the tribunal concluded that Ms Habib had exaggerated the difficulties posed by her dyslexia. There was a marked difference, it noted, between her ability to follow questions and documents as a witness compared to her ability to read documents and pass notes to her barrister when he was cross-examining the other side’s witnesses. It also noted an inconsistency in her ability to understand certain words as a witness, despite using them herself in her own evidence. These differences were so marked that the tribunal could not “escape the conclusion that there was an element of performance” in her behaviour.
Grounds for appeal
Ms Habib appealed, arguing that the tribunal had not given her a fair hearing. Firstly it had not referred to the Presidential Guidance on vulnerable witnesses and the relevant sections of the Equal Treatment Bench Book (ETBB) which provide judges with guidance on what steps they should take and what adjustments they should make to ensure everyone can participate fully in the process.
Secondly it had not made certain adjustments which would have helped her to participate more fully in the hearing. For instance, by allowing her bundle of documents to be given in evidence; by allowing her to be helped by an intermediary; and by allowing her to refer to her medical records as evidence.
Finally, when the tribunal made negative findings about her credibility as a witness, it failed to consider whether these concerns about her “performance” were linked to her disability.
EAT decision
Allowing the appeal, the EAT held that even though Ms Habib had not identified at the case management hearing what adjustments she might need at the full hearing, there was still an onus on the tribunal to explore any difficulties she might experience.
Rather than referring to the Presidential Guidance or the ETBB, it had relied on the inconsistencies in Ms Habib’s evidence “as a basis for deciding and impugning credibility”, despite the fact that these were the very characteristics that might arise from dyslexia. Although the tribunal was perfectly entitled to come to the conclusion that it did, it needed to do so through analysis and explanation.
Finally as the tribunal had not given Ms Habib the opportunity to present medical or other evidence about her disability it could not, fairly, come to a conclusion that she was or was not dyslexic.
The EAT therefore remitted the matter to a new tribunal for re-hearing.
Comment
It is incumbent upon the tribunal to make reasonable adjustments to allow disabled parties and witnesses to effectively participate in proceedings. Whilst the onus falls on the tribunal to do this, this case acts as a reminder for why a disabled claimant should articulate what adjustments they need (and why those adjustments are reasonable) early on in proceedings, for example during a case management hearing.