Reasonable adjustments: exercising the right to be heard
John Horan considers a decision concerning the United Nations Convention on the Rights of Persons with Disabilities and the Equal treatment bench book, and the lessons that can be learned from it by the lawyers of disabled people seeking to use tribunals and courts in this country.
The fact that Mr Rackham’s claim was to do with discrimination had no bearing at all on his right to ask the employment judge for reasonable adjustments at a hearing.
In Rackham v NHS Professionals Limited UKEAT/0110/15, 16 December 2015, Mr Justice Langstaff, in his last substantial judgment as President of the Employment Appeal Tribunal (EAT), considered for the first time the link between the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the domestically drafted and Judicial College-published Equal treatment bench book (ETBB).
The facts
Jonathan Rackham sued NHS Professionals Limited for unfair dismissal and disability discrimination under the Equality Act 2010. Mr Rackham, who was in his mid-30s, suffered from autism at the high end of the spectrum and had been diagnosed as having Asperger’s syndrome. Additionally, he suffered from anxiety and had an IQ of 67. He said on his ET1 that he had Asperger’s syndrome and would need reasonable adjustments before the hearing.
NHS Professionals Limited sought to strike Mr Rackham’s claim out on various grounds. On the day of the first preliminary hearing, waiting for other cases that were listed before the same employment judge to end, Mr Rackham was clearly anxious and he left the tribunal building before his case was meaningfully started. A friend who had been with him explained that he had become too stressed and anxious to remain.
On adjourning the case, the employment judge gave directions that resulted in a short report from Mr Rackham’s GP about which reasonable adjustments he needed in order to go on with the hearing. By the time the second preliminary hearing was listed, the employment judge had, in addition, a witness statement from Mr Rackham’s Law Centre worker, outlining the difficulty that had been encountered by his Bar Pro Bono Unit barrister in taking basic instructions from him: the barrister had ended up sending Mr Rackham away with a short list of questions for him to reply to by email in 48 hours.
At the second preliminary hearing, the employment judge was persuaded to order a specialist medical report, for which the respondent would pay, which in part was to deal with what reasonable adjustments Mr Rackham would need in order to undergo a full merits hearing. The judge also determined that a short telephone conference should take place a week before the third preliminary hearing to discuss, in the light of the medical report, what reasonable adjustments were necessary in order that Mr Rackham could take a full part in the hearing.
However, a few days later, the respondent’s solicitors wrote to the employment tribunal saying it would be too expensive to get a potentially suitable expert and suggesting modest reasonable adjustments. In the correspondence that followed between the employment tribunal, the respondent and Mr Rackham himself (the Law Centre having ceased to be instructed), the tribunal got Mr Rackham to agree that the reasonable adjustments that had been suggested by the respondent were suitable.
At the third hearing, represented by the same barrister, Mr Rackham changed his position and applied for an adjournment so that the medical expert’s report that had been ordered at the second hearing could be obtained. The employment judge rejected that submission and said that the only reasonable adjustments he needed were those that had been agreed to. After a brief adjournment, the employment judge went on to consider the merits of the case and struck out or dismissed Mr Rackham’s claims.
The appeal
On appeal, Mr Rackham asserted that, as a disabled person, the court owed him duties under UNCRPD art 13(1), which says:
States parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural … accommodations, in order to facilitate their effective role as direct and indirect participants … in all legal proceedings …
This has been ratified by both the UK and the EU and, indeed, it is now deemed by the UK to be European law under the European Communities (Definition of Treaties) (United Nations Convention on the Rights of Persons with Disabilities) Order 2009 SI No 1181. This makes it European law within the meaning of the European Communities Act (ECA) 1972 and, under s2 of that Act, in domestic UK courts, it is deemed to be primary legislation. This means:
•it has direct effect if certain conditions are satisfied (ECA 1972 s2(1)); and
•domestic law must comply with it wherever possible (ECA 1972 s2(4)).
Mr Rackham argued that the ratification of the UNCRPD and the subsequent 2009 order that the secretary of state made in domestic law clarified the common law in the English courts so as to make the common law in the domestic jurisdiction equivalent to art 13(1) in the European jurisdiction. On the international stage, the UNCRPD’s Committee on the Rights of Persons with Disabilities asked questions about art 13(1) rights; the UK government’s reply cited the procedure in the domestic ETBB as evidence that it had been complied with. In particular, Mr Rackham highlighted ETBB chapter 7 para 20, which says:
Rather than making assumptions based on generic information or knowledge of previous cases, decisions concerning case and hearing management should address the particular needs of the individual concerned insofar as these are reasonable. The individual should be consulted or given an opportunity to express their needs. Expert evidence may be required.
Langstaff P agreed with this analysis (para 36); however, he determined that, on the particular facts of this case, there was ‘considerable material to support the judge’s conclusion that, given in particular that the adjustments had the support of the general practitioner, they would be capable of securing a fair trial before him’ (para 53).
Leave is being sought for permission to appeal to the Court of Appeal.
Langstaff P’s guidance
Langstaff P’s guidance was one of the first on the duties of courts and tribunals not to discriminate against disabled people. First, he emphasised that a decision as to what it is reasonably practicable for the court or tribunal to do must be tailored not to some general idea of what a person with a disability needs, but to the individual who needs help (para 58). The tribunals need evidence or agreement on which to base their decisions.
Second, he emphasised that considerable weight should be placed on the integrity and autonomy of the individual, and where the disabled individual agrees with reasonable adjustment to the court process, instructing a medical expert is only an employment judge’s role in exceptional circumstances.
Third, he emphasised the need for tribunals (and, by extension, all courts) to look particularly at the ETBB’s description of non-criminal ground rules hearings, which might be appropriate in the preliminary consideration of the procedure that the tribunal should adopt to ensure the rights of the parties before it. Ground rules hearings (chapter 5 paras 87–90) are separate mini-hearings in which various decisions can be made, including about what reasonable adjustments are required to help a disabled person take a meaningful part in proceedings, before any substantive decisions are made about the case and its disposal. In many instances, a ground rules hearing will be appropriate.
Discussion
This article does not seek to rehearse the merits of the potential appeal (see above). However, various wider points arise from the EAT decision.
First, the wording of UNCRPD art 13(1) is deliberately wide so as to capture disabled people whenever they are involved in a case either directly or indirectly. This means that, potentially, legal representatives for either a claimant or a defendant/respondent can request a discussion about reasonable adjustments regardless of whether it is their client or their client’s witness, expert witness, barrister or solicitor who is disabled.
Also, the mere fact that Mr Rackham’s claim was to do with discrimination had no bearing at all on his right to ask the employment judge for reasonable adjustments at a hearing: this right applies equally in criminal, family, civil, employment and welfare benefits courts as well as tribunals. It is interesting to note that the Courts and Tribunals Judiciary website describes the ETBB as a ‘guide for judges, magistrates and all other judicial office holders’.
For criminal cases, there is a system of special hearings where detailed consideration is given to disabled individuals: the procedure can lead to quite detailed guidance in individual cases to those prosecuting and defending the case as to what reasonable adjustments are necessary. Currently, though, in the majority of civil cases, and certainly in employment cases, the systematic going through of the ETBB by the court or tribunal and consideration of the situation with regard to its guidance is seldom, if ever, done. This is surely an example of disabled people being treated as second-class citizens.
There is an unmet need for training on the ETBB for all practitioners.
Finally, for lawyers representing claimants who may suffer from a disability, the following points are particularly pertinent:
•There is an unmet need for training on the ETBB for all practitioners so that we can use its guidance to our clients’ advantage. The author of this article, a practising barrister with an interest in disabled people’s rights, was unaware of the fine detail of the ETBB until four years ago. How much of it do other practitioners really know?
•Two questions should be asked of all clients, regardless of the subject of their case: ‘Are you disabled?’ and ‘Do you anticipate disability being a factor that must be accounted for in the management of your case to trial?’ No one else is likely to do so.
•It pays to raise the issue of reasonable adjustments and a ground rules hearing at the earliest stage of proceedings, so that it is at the front of the court or tribunal’s mind and can be dealt with early on, before the substantive issues are heard.
•It is worth exploring as early as possible whether a GP or medical expert’s report is required: on many occasions, the client will not have any real idea what reasonable adjustments a medical expert would suggest.
•Careful consideration must be given to whether the medical evidence should be provided by the individual or, arguably, by the court order that expert evidence should be obtained, paid for out of public funds. It is certainly arguable that, where the duty is on the court, it can be expected to pay for expert evidence needed to fulfil that duty.
Rackham is a classic example of the power claimants’ legal practitioners have to really improve the lot of disabled people. It makes a difference how many of us demand justice for our disabled clients. If we want to change courts’ attitudes for the better, we must be prepared to fight and litigate about it. Anything less is a rejection of our clients’ rights and a failure in our duty toward disabled people. ■