Wednesday 17 June 2015

Tribunal Procedure: No duty to be inquisitorial

Thanks to Karen Jackson of didlaw for preparing this case summary
Is it an error of law for an employment tribunal not to adopt a purposive or inquisitorial approach to the evidence before it when determining disability?

No, held the EAT in Joseph v Brighton & Sussex University Hospitals NHS Trust.

The employment tribunal dismissed claims for unfair dismissal and disability discrimination because Ms Joseph failed to demonstrate that she met the statutory definition of disability (s.6, Equality Act 2010). She suffered from Antiphospholipid Syndrome (a blood disorder) and stress/depression, but failed to make a case for disability in relation to either condition. There was no reference to any functional impairment in her full witness statement, she did not set out any impact on normal day-to-day activities in her impact statement and she failed to demonstrate that either condition had a substantial long-term impact.

The employment tribunal accepted the Respondent's case that the very limited evidence on disability could not lead to a finding of disability. The Claimant alleged that the employment tribunal had erred in law by 'ignoring' documents in a 580-page bundle which were not referred to during the hearing. In any event the employment tribunal found that the Respondent had no knowledge: even if disability had been established the claims would have failed.

The Claimant sought to show that an employment tribunal has a duty to assist litigants and lay representatives and that this included referring to all the documents in the bundle, relying on Mensah v East Hertfordshire NHS Trust and Muschett v HM Prison Service. The EAT held that this duty did not go so far as to determine how the Claimant should put her case. It would have been permissible for the employment tribunal to provide more assistance but it is not a legal requirement for it to do so.

This case demonstrates the high hurdle that is meeting the section 6 definition of disability and the importance to Claimants of adducing substantial medical evidence in support.

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