Unfair in person

Tribunals are required to help claimants who bring their own case (known as litigants in person) and ensure they understand their rights. However, the Employment Appeal Tribunal (EAT) held in Shui v University of Manchester and ors that a failure on the part of a tribunal to remind a litigant in person that they have a right to ask for a hearing to be postponed does not render the process unfair. 

Basic facts 

Mr Shui brought a number of claims against his employer at the end of his fixed-term contract. Prior to the tribunal hearing, concerns were raised about his mental health and he received medical advice that he was not fit to participate, although there was no suggestion that he lacked capacity for the purposes of the Mental Capacity Act 2005.  

As a litigant in person, the tribunal had advised him of his right to seek a postponement before the hearing and also clarified with him at the start of the first day of the hearing whether he wished to proceed. However, it did not expressly remind him of his right to apply for a postponement or adjournment of the hearing during the hearing. 

He then became increasingly unwell in the course of the hearing and broke down during cross-examination. The university applied to bring the questioning to an end and although Mr Shui said he was willing to continue, the tribunal agreed with the application.  Ultimately, however, the tribunal dismissed all his claims. 

Appeal against the decision 

Mr Shui appealed on the basis that the tribunal had a duty to help him as a litigant in person. Firstly, he argued that the tribunal had failed to proactively adjourn the proceedings at the outset of the hearing, or at least raise the possibility that he should have made an application to that effect; and secondly, that it decided to bring cross-examination to a halt rather than adjourn to give him time to recover. As such, he had been denied a fair hearing. 

EAT decision 

Standing in the shoes of the “objective observer”, the EAT held that the hearing was fair overall. 

It was clear that Mr Shui was aware of his right to seek a postponement of the hearing but chose not to do so. The issue of a postponement had been raised at earlier stages in the proceedings and Mr Shui had previously made clear he wished to proceed because the stress of the case was making his illness worse - a view supported by the medical evidence. In addition, the university had addressed the question of adjournment/postponement in its opening submission for the full hearing.  Mr Shui had had time to digest the content of that document and to comment on it but did not seek to raise the issue of postponement.

As for the decision to halt cross-examination, the failure of the tribunal to agree to his request to continue did not render the hearing unfair, as it was merely an acknowledgment of the university’s right to choose not to challenge parts of his oral testimony by way of cross-examination.  There was a risk in adopting this course but it was a risk to the university. As such, Mr Shui’s rights were not affected.  He had already been able to cross-examine the university and its witnesses and had given his evidence by means of his witness statement.  He then had the opportunity - after a break over a long weekend - to make his response to the university’s case by way of closing submissions.  

Although the tribunal hearing was very challenging for Mr Shui, this did not mean it was unfair.  The tribunal was mindful of its obligations to him and his right to a fair hearing was not undermined.  It therefore dismissed the appeal.