Adjustments not required for a claimant in conducting their appeal when it was only a one-day hearing rather than a multi-day hearing with witnesses and live evidence.

The claimant brought various claims against the respondent University. Some of them were struck out by the Employment Tribunal and the claimant appealed to the EAT. The claimant applied for reasonable adjustments at the EAT citing his disabilities including sleep apnoea, PTSD, chronic pain and ishaemic heart disease.  He sought more preparation time, changes to the format, further breaks, support from family as well as assistive technology. This was refused by the EAT and the claimant appealed to the Court of Appeal.

The Court of Appeal acknowledged that there was a duty within Sections 20 and 21 of the Equality Act 2010 to provide reasonable adjustments. The claimant argued that there was a legal duty placed upon courts and tribunals to ensure that he was not discriminated against in the provision of judicial services. However, Schedule 3 of the 2010 Act states that it did not apply to a ‘judicial function’. The EAT, had been, according to the Court of Appeal exercising a judicial function when it dismissed the application and it would be again exercising such function when hearing the substantive appeal.  As a result, the duty did not apply.

The exercise of judicial discretion, does though, have to take into account a party’s disability. This was part of the common law duty of fairness.  Therefore, the court did have to make reasonable adjustments to alleviate what would be a substantial disadvantage which was related to a party’s disability.

In applying this – the Court of Appeal stated at the heart of the case was a fundamental misunderstanding.  The claimant felt that the case would last days with witnesses whereas the appeal was only listed for one day. The EAT would only be tasked with whether the Employment Tribunal had erred in striking out the claims.  It would not be doing a substantive hearing of the overall claims.  This meant that the request for additional time was unnecessary and no need to adjust the hearing; the claimant could request a later start but that would not be ordered by the Court of Appeal.  On the point of technology – it was found that there was no explanation of why the speech-to-text software was being requested and if there was a genuine need then the case could be made at that point.

It may be a surprise that there’s no legislative duty upon judicial functions in making a reasonable adjustment.  However, that does not mean there is no duty at all as it is part of the common law duty of fairness. That then needs to be applied in context and when it came to a one-day appeal on a narrow legal point the wide range of adjustments were not required compared to a case in which there would be hearing of evidence and questioning of witnesses.  This is especially useful in the context of personal litigants who are conducting the running of their hearing and the adjustments that they may need in doing so rather than just an adjustment for a witness to give their evidence.

You can read the case in full here.