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Reasonable Adjustments and Recording Tribunal Proceedings: Bella v Barclays Execution Services Ltd & Ors [2024] EAT 16 (23 February 2024)

<!-- 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 -->

What can a Settlement Agreement settle, and Once a Seafarer always a Seafarer?

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/barristers/dominic-bayne">Dominic Bayne</a></strong><em>&nbsp;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>In <strong>Bathgate v Technip</strong> [2022] EAT 155, the EAT in Scotland addressed those two distinct jurisdictional issues in the context of a claim for post-employment discrimination. </em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the one hand, Lord Summers held that a qualifying settlement agreement cannot, in principle, compromise future claims arising out of circumstances that had not yet occurred.&nbsp;Indeed, in his view, the common practice of listing a whole series of complaints within a settlement agreement does not satisfy the statutory requirements of a qualifying settlement agreement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the other hand, he also held that because the Claimant had been a seafarer throughout the course of his employment, the tribunal had no jurisdiction to consider his post-employment discrimination complaint.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Factual Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The facts in <strong><em>Bathgate</em></strong> are unusual. Mr Bathgate had spent most of his working life engaged on board non-UK flagged vessels operating outside UK territorial waters.&nbsp;By section 81 of the Equality Act 2010, that employment was not subjected to the anti-discrimination provisions of the Act. For the last 6 months of his employment, however, he had been based at home in Scotland, undertaking various union and training activities, and in January 2017 he accepted voluntary redundancy. Unusually, the terms of his redundancy agreement provided for a future payment to be worked out later by reference to an historical collective agreement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It did not become apparent until after he had signed that settlement agreement, that on one reading of the collective agreement (which pre-dated the age discrimination legislation), because Mr Bathgate was over 60 at the date of the termination, no future payment would be due.&nbsp; It was therefore several months after the end of Mr Bathgate’s employment that Technip took the decision that it would not be paying Mr Bathgate the future payment after all.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is difficult to interpret that decision as anything other than directly discriminatory on the grounds of age; and that was the claim that Mr Bathgate brought. It was defended on a number of jurisdictional grounds. In particular, Technip contended that the claim had been compromised by the terms of a qualifying settlement agreement, and that the Equality Act 2010 did not apply to Mr Bathgate because he had been a seafarer whilst employed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Employment Tribunal found in favour of Mr Bathgate on all jurisdictional grounds bar one: it concluded that by signing a qualifying settlement agreement, Mr Bathgate had compromised his claim even before it had arisen; and that it therefore had no jurisdiction to hear it. That issue formed the subject of the appeal. Technip cross-appealed against the finding that the Equality Act 2010 applied to post-employment discrimination against a seafarer.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>A Qualifying Settlement Agreement?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In relation to the appeal, the EAT focused on the requirement, at section 147(1)(b) of the Act, that a qualifying settlement agreement ‘<em>relates to the particular complaint’</em>. Lord Summers asked himself whether that requirement could ever be met in relation to a cause of action which had not emerged at the time of the agreement; and concluded that it could not. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In coming to that view, he drew support both from the words of Viscount Ullswater, when introducing the Act to the House of Lords, that a ‘<em>particular complaint was one that had already arisen between the parties</em>’; and from the judgments of Mummery and Smith LJJ in <strong><em>University of East London v Hinton </em></strong>[2005] ICR 1260, that the broad purpose behind the section was to protect employees from relinquishing their rights.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>He noted that Lady Smith had previously expressed the apparently contrary view in <strong><em>Hilton UK Hotels v McNaughton </em></strong>EATS/0059/04.&nbsp; In an otherwise useful summary of the law in relation to the analogous provision in the Employment Rights Act 1996, she included the proposition that ‘<em>parties may agree that a compromise agreement is to cover future claims of which the employee does not have and could not have any knowledge’</em>. However, Lord Summers accepted that that comment was drawn from the earlier decision of <strong><em>Royal National Orthopaedic Hospital v Howard </em></strong>[2002] IRLR 849 which related to the general law of contract, rather than the statutory restrictions against compromising away rights. As such, it could be disregarded.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Perhaps more importantly, in a passage which may cause concern amongst Respondent draftsmen, Lord Summers went further and said in paragraph 25:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘I consider [the section] does not permit clauses that list a series of types of complaint by reference to their nature or section number. It does not seem to me that there is any difference in principle between a “rolled up” waiver and a waiver that lists a variety of possible claims by reference to their nature or section number.&nbsp; Both are general waivers. I consider that both fall foul of the guidance given by Mummery LJ and Smith LJ in <strong><em>Hinton</em>’</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If that is right, it renders worthless much of the verbiage that is written into most settlement agreements precisely to ensure that they are of wide ranging effect.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Discrimination against Seafarers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong><em>Walker v Wallem </em></strong>[2020] ICR 1103 the EAT recently had to consider whether the Equality Act applied to a UK citizen on UK soil who was applying to work on board a vessel outside the jurisdiction. It felt compelled to conclude that it did not. However, Kerr J made his discomfort at reaching that decision absolutely clear and doubted that the <em>Equality Act 2010&nbsp;(Work on Ships and Hovercraft) Regulations 2011</em>, which govern the extent to which Part 5 of the Act extends to seafarers, were compatible with the UK’s obligations under the EU Equal Treatment Directive.&nbsp; </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>That is because the Regulations do not prohibit discrimination against seafarers (or applicants) whilst they are actually on UK soil. &nbsp;He also made it clear that he had been unable to adopt a purposive construction, in line with <strong><em>Marleasing </em></strong>principles, so as to preserve compatibility because the provisions that prohibited discrimination against applicants were the same as those that prohibited discrimination against employees.&nbsp; As he explained at paragraph 31, however, he did not decide the position in relation to post-employment discrimination, which is dealt with under a different part of the Act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Against that background, it would have been open to the EAT, and entirely consistent with the decision in <strong><em>Wallem</em></strong>, to conclude that Mr Bathgate did benefit from the protection of the Act. Although section 81 of the Act is explicit that Part 5 of the Act (which prohibits discrimination at work) only applies to ‘seafarers’ in prescribed circumstances, the EAT could have concluded that on a purposive construction that the word ‘seafarer’ did not extend to employees who were no longer actively engaged on board a ship.&nbsp; </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Alternatively, it could have concluded, as the Tribunal had done at first instance, that because post-employment discrimination is prohibited by Part 8 rather than by Part 5 of the Act, the disapplication of Part 5 by section 81 did not apply to it. The EAT chose to do neither.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the view of Lord Summers, the word ‘seafarer’ could only be understood colloquially as a reference to someone whose habitual workplace was on board a ship.&nbsp;Parliament cannot have intended a person to gain rights when disembarking only to lose them again on re-embarking; so there was no room for a purposive interpretation. In addition, the post-employment provisions were designed to extend a workplace protection beyond the end of employment and could not be read as creating new rights for former employees that they did not have whilst employed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lord Summers’ conclusion that a qualifying settlement agreement cannot be used to compromise claims which have not yet arisen is surely correct.&nbsp; It would make no sense for parliament to have legislated to protect employees from signing away their rights, if early in their employment, say, they were permitted to do exactly that. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, his wider conclusion, that a list of statutory provisions falls foul of the requirements of a valid settlement agreement in just the same way a general waiver does, may be more open to question.&nbsp;For one thing, it goes rather further than Smith LJ went herself in <strong><em>Hinton</em></strong>: she stopped short of holding that such a list would not work; and only went so far as to say that she would ‘<em>not regard it as good practice for lawyers to draft a standard form of compromise agreement which lists every form of employment right known to the law</em>’.&nbsp;Nevertheless, it does appear to be part of the ratio of the decision, and for the moment at least, should be assumed to be binding.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The decision that it is entirely lawful to discriminate against a former seafarer whilst on UK soil is something that many lay people will find difficult to understand.&nbsp;It is to be hoped that the government will head the warning of Kerr J in <strong><em>Wallem </em></strong>that the Regulations do not provide the sort of protection that as a country we have now come to expect.&nbsp;Given the current political turmoil, however, that is likely to be some way down on their list of priorities.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/barristers/dominic-bayne"><em><strong>Dominic Bayne</strong></em></a><em>&nbsp;acted for Mr Bathgate before the EAT and at first instance.&nbsp;He is joint head of&nbsp;</em><a href="https://www.parklaneplowden.co.uk/expertise/employment"><em><strong>PLP’s employment team</strong></em></a><em>, and is recognised by the directories as one of the leading employment barristers on the North Eastern Circuit.</em></p> <!-- /wp:paragraph -->