Sara Ibrahim has written the following article “Treading a tightrope: litigants in person and procedural fairness” for the ELA briefing.
“Vulnerable litigants in person pose particular challenges for both tribunals and respondents. While the overriding objective requires a tribunal to consider how a LiP’s vulnerabilities affect their ability to conduct the claim, the tribunal must not act as the LiP’s advocate.”
Higgins: recent guidance
The overriding objective requires the tribunal, so far as practicable, to deal with a case so as to ensure that the parties are on ‘an equal footing’. Rule 41 of the ET Rules gives tribunals great flexibility in conducting hearings in a ‘fair manner’ in line with the overriding objective. Where the claimant is a LiP with vulnerabilities, such as a mental health disability, how should the tribunal conduct itself?
The most recent case to consider this difficult problem is Higgins. The claimant had a long history of mental illness. She issued her claim for unfair constructive dismissal some six years after her employment ended. The ET1 was poorly drafted and Ms Higgins was sent a letter of rejection of the claim pursuant to ET Rule 12, which requires an employment judge to reject a claim form if it is an abuse of process. Her subsequent application for reconsideration, which relied upon a psychiatrist’s letter stating that she had not been well enough over the past six years to pursue a claim, was also rejected.
HHJ Serota QC allowed her appeal at the EAT. Although the ET1 was badly drafted, it was possible to spell out a claim for unfair dismissal. There was sufficient material to show that the employment judge should have appreciated that she may have had mental health issues and therefore may have lacked the competence to participate in proceedings. HHJ Serota stated that Rule 12 orders were equivalent to a striking-out direction and ‘should only be made in the most plain and obvious cases’. Any borderline case, or cases lacking clarity, or where there is ‘a muddle involving a litigant in person’, should be disposed of under Rule 27, which permits a claimant to make representations (para 35). HHJ Serota held that the overriding objective requires the tribunal to have regard to any disability of which it is aware.
This was the approach taken in Butler and Wilson, another recent EAT case. The appellant had a history of mental health difficulties and had arrived late at the tribunal claiming to suffer from symptoms of a psychotic episode, which were apparent to the employment judge. Wilkie J held that the fact of the appellant’s disability was an important factor to which the employment judge had to have regard when making case management decisions, in accordance with the overriding objective.
Accordingly, the employment judge should have adjourned the hearing for a brief period in order to allow the appellant to recover sufficiently to present his case. Furthermore, it was incumbent on the employment judge to have advised him on the different ways in which he could apply for a review of the strike-out decision that she had made in his absence
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February 12, 2021
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