In Rackham v NHS Professionals Ltd Langstaff P (as he then was), in the EAT, has given judgment on the existence and nature of the duty on tribunals and courts to make reasonable adjustments for disabled litigants.
The Claimant brought a case of disability discrimination and unfair dismissal against the Respondent. The Claimant was autistic at the high end (diagnosed as Asperger’s) and suffered from anxiety. That he was disabled was not disputed by the time of the appeal. At first instance he acted as a litigant in person with some assistance from a law centre and the Bar Pro Bono Unit.
An initial preliminary hearing (to determine strike out applications of the Respondent) had to be abandoned because the Claimant became too distressed to participate. At a second preliminary hearing an expert report was ordered to address the question of whether the Claimant was disabled and what adjustments the Tribunal itself should make for the Claimant. A third preliminary hearing was then listed to determine the Respondent’s strike out applications.
For various reasons surrounding funding and disclosure, no expert report was produced before the third preliminary hearing.
Prior to the third preliminary hearing, the Respondent proposed a number of reasonable adjustments for the hearing. From the correspondence, it appeared to the Tribunal that the Claimant agreed to those adjustments. At the hearing itself, the Claimant applied for an adjournment in order for an expert report on reasonable adjustments to be produced. That application was rejected, the hearing proceeded, and the claims were struck out.
The Claimant appealed on the basis that the Tribunal should have, pursuant to its duty to make reasonable adjustments, adjourned for an expert report on reasonable adjustments.
On appeal, the EAT (sitting in three-member formation) addressed: (a) whether there is a duty on the courts and tribunals to make adjustments and the nature of such a duty; (b) whether the duty was discharged in this case; (c) guidance for tribunals on making reasonable adjustments.
Duty to make reasonable adjustments
The parties and the EAT were in agreement: it could not be disputed that “a Tribunal has a duty as an organ of the state, as a public body, to make reasonable adjustments to accommodate the disabilities of Claimants.”
The source of that obligation was not specifically identified. It could arise by virtue of the United Nations Convention on the Rights of Persons with Disabilities, the Equal Treatment Directive, common law fairness, or otherwise.
Whilst the sources of the obligation might be multiple/unspecified, guidance was taken from the UN Convention as to purpose, notably drawing on article 13, “Access to Justice”. Specifically, the EAT identified the purpose as being:
to overcome such barriers so far as access to court is concerned, in particular to enable a party to give the full and proper account that they would wish to give to the Tribunal, as best they can be helped to give it.
This duty does not override the duty on courts and tribunals to accord fairness to both parties. Accordingly, the position of both parties needs to be balanced when making adjustments.
The EAT found that, in this case, the duty in respect of access to justice had been discharged. There was no duty in this case to obtain an expert opinion on the Claimant’s disability and the reasonable adjustments required. Factors the EAT considered supported that conclusion included: the EJ had properly considered the Equal Treatment Bench Book; there were not continued requests for an expert report; the reasonable adjustments had apparently been agreed between the parties; there was no reason to think the expert could spot a reasonable adjustment that no-one else had; the Claimant had himself expressed his own view on reasonable adjustments; and there was already substantial evidence on the Claimant’s condition and his ability to deal with tribunal hearings.
Guidance on reasonable adjustments
As to discharging the duty to make adjustments, the EAT provided some practical guidance:
- The EAT was keen to emphasise that the term ‘disability’ is a broad one. Guidance as to how to satisfy the duty to make reasonable adjustments is set out in the Equal Treatment Bench Book.
- In making reasonable adjustments, the judiciary should be careful to respect the integrity and autonomy of disabled people. Only in exceptional cases should the decisions of disabled litigants be second-guessed.
- Emphasis in tribunals might be given to the section of the Equal Treatment Bench Book on “ground rules hearings”. Such hearings allow for preliminary consideration of what adjustments should be made for a disabled litigant.
- Elsewhere in the judgment, it was noted that experts may sometimes be needed to determine what reasonable adjustments should be made. Funding of such an expert was not addressed in this case as none was required.
Other matters that arose in the case include:
- Fairness is paramount; convenience of litigation is secondary, applying AWG Group Ltd v Morrison  EWCA Civ 6 (an impartiality case) to appeals concerning unfairness. Accordingly, the EAT had no regard to the underlying merits of the claims when determining whether the Claimant had suffered an unfair hearing.
- The standard of review for the EAT to apply in reasonable adjustment cases remains a vexed issue. The EAT offered a helpful survey of some of the different standards of review open to it: full re-consideration, Wednesbury reasonableness, or proportionality, but found that it was not necessary in this case to determine which was appropriate. It did note that it was reluctant to accept that Wednesbury reasonableness (a line of authority following O’Cathail v TfL  ICR 614, CA) was the correct standard.
Instructing solicitors were RadcliffesLeBrasseur.