<!-- wp:paragraph --> <p><strong><u>The Background</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant/Appellant applied to the Employment Tribunal to be allowed to record a three-day preliminary hearing. The Employment Judge declined to grant the application as he was not satisfied with the evidence in support or that there was any significant disadvantage to the Appellant. In reaching his decision, the Judge did not refer to the guidance provided on this question in <strong><u>Heal v University of Oxford [2020]</u></strong> ICR 1294. Although the guidance in Heal is not mandatory, is in important in considering an application to record proceedings and by not referring to it, the Judge then failed to take into account factors material to the assessment of the Appellant's application. The Judge should therefore have granted the application and it was right to make a declaration that the decision not to do so was unlawful.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The Law</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Employment Tribunal is under a duty to make reasonable adjustments in appropriate circumstances. Whilst the language of reasonable adjustments appears in s. 20 of the Equality Act 2010, that section does not provide the source of the relevant duty as was made clear by Underhill LJ in&nbsp;<strong><u>J v K [2019]</u></strong>&nbsp;ICR 815, albeit in the context of an application for an extension of time for the presentation of a complaint to the employment tribunal:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"className":"is-style-default"} --> <p class="is-style-default"><em>"...judicial decisions are excluded from the scope of the Act: see paragraph 3 of Schedule 3 to the Act. But as a matter of general law the exercise of a judicial discretion must take into account all relevant considerations, and in such a case the party's mental condition or other disability would plainly be a relevant consideration."</em> [33]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Langstaff J in <strong><u>Rackham v NHS Professionals Ltd</u></strong> UKEAT/0110/15/LA said as to the level of review to which and Employment Tribunal's decision on reasonable adjustments could be subject to scrutiny at the EAT level:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>"In this case, though we are attracted to the proportionality analysis that Miss Joffe proposed and that Mr Horan in reply adopted, we do not think that the decision actually depends upon the approach we take, though we would observe that we would be very hesitant before suggesting that a pure&nbsp;Wednesbury&nbsp;approach was appropriate in any case in which it appeared to the reviewing court that it would have been reasonable to have to make an adjustment if that adjustment appeared necessary to obtain proper equality of arms for someone with a relevant disability</em>."[46]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In addition, the court observed as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“<em>In many cases, if not most, a person suffering from a disability will be the person best able to describe to a court or to others the effects of that disability on them and what might be done in a particular situation to alleviate it</em>." [50]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The particular issue of whether a reasonable adjustment might be granted in the form of permission to record proceedings was considered by Choudhury J in the Employment Appeal Tribunal in <strong><u>Heal v The Chancellor, Master and Scholars of the University of Oxford &amp; Ors</u></strong> [2020] ICR 1294. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“a. Tribunals are under a duty to make reasonable adjustments to alleviate any substantial disadvantage related to disability in a party's ability to participate in proceedings.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>b. Where a disability is declared and adjustments to the Tribunal's procedures are requested in the ET1 form, there is no automatic entitlement for those adjustments to be made. Whether or not the adjustments are made will be a matter of case management for the Tribunal to determine having regard to all relevant factors (including, where applicable, any information provided by or requested from a party) and giving effect to the overriding objective.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>c. The Tribunal may consider whether to make a case management order setting out reasonable adjustments either on its own initiative or in response to an application made by a party.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>d. If an application is made for reasonable adjustments, the Tribunal may deal with such an application in writing, or order that it be dealt with at a preliminary or final hearing: see Rule 30 of the ET Rules.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>e. Where the adjustment sought is for permission for a party to record proceedings or parts thereof because of a disability-related inability to take contemporaneous notes or follow proceedings, the Tribunal may take account of the following matters, which are not exhaustive, in determining whether to grant permission:</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>i. The extent of the inability and any medical or other evidence in support;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>ii. Whether the disadvantage in question can be alleviated by other means, such as assistance from another person, the provision of additional time or additional breaks in proceedings;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>iii. The extent to which the recording of proceedings will alleviate the disadvantage in question;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>iv. The risk that the recording will be used for prohibited purposes, such as to publish recorded material, or extracts therefrom;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>v. The views of the other party or parties involved, and, in particular, whether the knowledge that a recording is being made by one party would worry or distract witnesses;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>vi. Whether there should be any specific directions or limitations as to the use to which any recorded material may be put;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>vii. The means of recording and whether this is likely to cause unreasonable disruption or delay to proceedings.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>f. Where an adjustment is made to permit the recording of proceedings, parties ought to be reminded of the express prohibition under s.9(1)(b) of the 1981 Act on publishing such recording or playing it in the hearing of the public or any section of the public. This prohibition is likely to extend to any upload of the recording (or part thereof) on to any publicly accessible website or social media or any other information sharing platform."</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Comment</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Given the facts of the case, that there was evidence from a psychotherapist support the application, the application was not opposed by the Respondent, the Claimant was a litigant in person, the PH in question was to last 3 days, and the Claimant had previously been given permission to record hearings with no concerns over his use of those recordings, the outcome of the case is hardly surprising.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Considering the frequency with which disabled Claimants, or witnesses more generally, come before the ET, it is surprising how regularly reasonable adjustments are not considered at case management stage. When adjustments are considered and ordered, they are often conservative in nature. One reason for this conservatism may be an over-reliance on expecting Claimants to identify the adjustments they need, and the corresponding obvious difficulty for Claimants, not familiar with the ET process, to imagine what measures may alleviate disadvantages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It would be short-sighted for a Respondent representative, seeing no reasonable adjustments requested by a disabled Claimant, to fail to raise the matter. Of course primary duties are to the Tribunal, and Respondents must always bear in mind the Overriding Objective, and as such it would be sensible to always raise the matter of adjustments proactively at case management stage. In most circumstances, it is far better for a Respondent to have an effective final hearing with adjustments, albeit perhaps slightly longer, than a disrupted hearing, or worse, an appeal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Representatives will find useful guidance on reasonable adjustments in the context of vulnerable parties and witnesses in the <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">Presidential Guidance</a>. The Presidential Guidance refers to <a href="https://www.theadvocatesgateway.org/toolkits-1-1-1">The Advocate’s Gateway Toolkits</a> which cover a range of topics including cross examining witnesses with autism, dyslexia, ADHD, and deaf witnesses. For those representing Claimants with disabilities, the toolkits may be a helpful prompt to inform requests for meaningful reasonable adjustments.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Bethan Davies has successfully defended a Whistleblowing Detriment Claim pleaded at £980,033.37.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claim involved multiple preliminary hearings, including complex arguments on employee status pertaining to a claimant employed by an umbrella company and IR35. Bethan was successful at the preliminary stages in arguing that the Claimant was merely a worker for the purposes of the expanded ERA 43K worker provisions, thereby significantly limiting the claims proceeding to a final hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At the final hearing, Bethan was successful in arguing that none of the Claimant’s allegations, individually or cumulatively, amounted to qualifying discourses, and in any event the purported detriments were not “on the grounds of” any disclosures. The final hearing engaged arguments on separability of disclosures from the means or manner in which they were made, and complex issues of loss including a career-long claim for stigma damages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Bethan has a busy tribunal practice and has a particular interest in whistleblowing claims having acted for the Claimant in one of the earliest reported successful COVID-19 health and safety dismissal claims.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>The Claimant appealed against a decision under Rule 37(1)(a) of the Employment Tribunal Rules, striking out claims of indirect discrimination, victimisation, failure to make reasonable adjustments, harassment, and discrimination arising from disability, on the ground that the claims had no reasonable prospect of success. The struck-out claims arose from the way in which grievances had been addressed (but did not concern the substantive outcome of the grievances). </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant took issue with various aspects of the grievance process, the struck-out claims pertained to a delay in responding to grievances, requesting a schedule of complaints, informing the Claimant her grievances may be out of time and asking her to set out why they were not, and refusing to accept that the Claimant was disabled. The pleaded case did not particularise why or how these acts were said to amount to the various forms of pleaded discrimination.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT considered whether the strike out was consistent with <em>Ezsias v North Glamorgan NHS Trust</em>, that a claim should not be struck out where there were facts in dispute between the parties which might affect the decision.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT held that the Employment Judge had been entitled, as a matter of assessment, to reach the conclusions he had. The need for caution when considering a strike-out application does not prohibit realistic assessment where the circumstances of the case permit. As per the ruling of the CoA in <em>Ahir v British Airways</em> [2017], it is open for a tribunal to strike out a claim, even if there are material disputed facts, where there is on the face of it a straightforward and well-documented innocent explanation, and the Claimant’s case proceeds on the basis of a mere assertion that that explanation was not the true explanation, without the Claimant being able to advance some basis for that being so. In this case, the claims rested on undisputed events. The matters complained of were apparently ordinary events that might occur in the course of any grievance process. No part of the Claimant’s case explained why those events should not be taken at face value. In these circumstances, the decision that the claims had no reasonable prospect of success was one reasonably open to the Employment Judge.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case is essential reading for those making strike out applications for Respondents based on claims having no reasonable prospects of success. Tribunals are, understandably, reluctant to strike out claims, particularly discrimination claims. The EAT noted that the rarity of strike outs for want of reasonable prospects of success “<em>is the clear tenor of the authorities, all of which identify the caution Tribunals must apply when dealing with Rule 37(1)(a) applications</em>.” What is clear though is that “<em>that submission on its own, is not sufficient</em>”, and each case must be determined on its merits. The case will be useful for respondents making applications is such cases, where it is not infrequent to be met by outright refusal to consider strike out.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Equally, the case should serve as a salutary remined to those pleading claims that to simply set out a factual background, followed by an allegation of discrimination is insufficient; there must be some explanation as to why events that may have an innocuous explanation, should not be taken at face value. Crucially, whilst when considering such an application a tribunal should take the Claimant’s case at its highest, <em>“taking a case at its highest does not require a Tribunal to speculate on a case that a claimant might have advanced, but has not advanced.”</em></p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Our Employment ‘<strong>Law with Lunch</strong>’ webinar series of bitesize, lunchtime talks covering the legal issues of the moment are not to be missed.</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="tuesday-5th-april-2022-12-30-pm-zoom-webinar"><strong>Tuesday, 27th September 2022, 12.30 PM, Zoom Webinar</strong>&nbsp;</h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Barristers and employment specialists&nbsp;<a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/" target="_blank" rel="noreferrer noopener">Sarah Brewis</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/" target="_blank" rel="noreferrer noopener">Bethan Davies</a> will discuss</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="cru-how-it-works-what-benefits-are-offsetable-against-what-damages-common-misconceptions">Common Mistakes in Employment Tribunal Witness Statements</h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">--0--</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"left"} --> <p class="has-text-align-left">From the latest procedural tips, these sessions are ideal for busy practitioners who want to enjoy their lunch break while updating their legal knowledge.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These events are free, and we expect them to be popular, please book early to avoid disappointment. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For further enquiries or to register, please email&nbsp;<a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a>&nbsp;&nbsp;</p> <!-- /wp:paragraph -->

<!-- wp:html --> <iframe width="560" height="315" src="https://www.youtube.com/embed/eLbZXOvZWMA" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe> <!-- /wp:html --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden 'Law with Lunch' webinars bring you the latest law updates. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the 30^th June 2022 webinar, Parklane Plowden personal injury barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/" target="_blank" rel="noreferrer noopener">Bethan Davies</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/may-martin/" target="_blank" rel="noreferrer noopener">May Martin</a> discussed the key recent developments in the personal injury case law. The webinar ensured that practitioners were brought up to speed with legal developments and included a discussion of&nbsp;<em>Paul v Royal Wolverhampton NHS Trust</em>, H<em>o v Adelekun</em>, and&nbsp;<em>Hughes v Rattan</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Click the video to watch the webinar recording.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Our ‘Law with Lunch’ webinar series in June of bitesize, lunchtime talks returns with Parklane Plowden's award-winning personal injury team to bring you updates covering the legal issues of the moment.</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="tuesday-22nd-march-2022-12-30-pm-zoom-webinar"><strong><strong>Thursday, 9^th June 2022</strong>, <strong>12.30 pm, Zoom webinar</strong></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Barrister and clinical negligence specialist <a href="https://www.parklaneplowden.co.uk/our-barristers/justin-crossley/" target="_blank" rel="noreferrer noopener"><strong>Andrew Axon</strong></a> will discuss&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="section-33-know-your-limitations"><strong><strong><strong>Material Contribution, the evolving Caselaw</strong></strong></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Presenting a comprehensive review of the law of Material Contribution, the evolving caselaw and how it applies to Clinical Negligence Litigation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">--0--</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="tuesday-22nd-march-2022-12-30-pm-zoom-webinar"><strong><strong>Thursday, 30^th June 2022</strong>, <strong>12.30 pm, Zoom webinar</strong></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Personal Injury barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/" target="_blank" rel="noreferrer noopener"><strong>Bethan Davies</strong></a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/may-martin/" target="_blank" rel="noreferrer noopener"><strong>May Martin</strong></a> will discuss&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="section-33-know-your-limitations"><strong><strong><strong>Personal Injury Case Law Update</strong></strong></strong></h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Highlight the key recent developments in the personal injury case law. The webinar will ensure that practitioners are up to speed with legal developments and will include a discussion of <em>Paul v Royal Wolverhampton NHS Trust</em>, H<em>o v Adelekun</em>, and <em>Hughes v Rattan</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">--0--</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From the latest procedural tips, these sessions are ideal for busy practitioners who want to enjoy their lunch break while updating their legal knowledge.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These events are free, and we expect them to be popular, please book early to avoid disappointment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>For further enquiries or to register, please email <span style="text-decoration: underline;"><a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a></span></strong></p> <!-- /wp:paragraph -->