The tribunal, which suspected that the Claimant was "delusional", invited the Official Solicitor to investigate whether the Claimant had sufficient mental capacity to litigate his claim.
The Claimant appealed. Underhill J., sitting alone, held that:-
- the employment tribunal rules make no provision for the tribunal to appoint a litigation friend. Such a power cannot be implied (para. 11);
- there is, in law, a presumption that a party has mental capacity (para. 12).
Taken together, these mean that tribunals should be very wary of investigating a party's mental capacity. Underhill J. stated that tribunals are required to deal with "delusional" allegations under their general case management powers. If the case is misconceived, it can be struck out. However, even if the case is not misconceived, it may still be struck out if the party suffering from possible mental incapacity conducts the proceedings in a way which renders the case unmanageable (paras. 13-14)
Conversely, this means that Respondents may be exposed to vexatious or misconceived allegations which a tribunal may be reluctant to strike out. On the other hand claimants who are genuinely mentally ill will be exposed to costs sanctions where the claim or at least some of the allegations are or may be a product of their illness.
Perhaps unsurprisingly, the EAT did not deal with the Claimant's ground of appeal which asserted that he had - in fact - won his claim and been awarded compensation by the tribunal, and that the tribunal order which arrived through the post was "a forgery" (para. 4)