Authors:John Horan
Last updated:2023-09-18
ET guidance on vulnerable people: the missing power of consultation
Louise Heath
John Horan discusses the new guidance on vulnerable people in employment tribunal proceedings, brought into particularly sharp focus by the continuing fallout from the coronavirus pandemic.
I am one of the dozen or so barristers who are disabled and, I think, the only one who does discrimination law. It was with marked ambivalence that I recently read the Presidential guidance: vulnerable parties and witnesses in employment tribunal proceedings (Judge Brian Doyle, president of the employment tribunals (England and Wales), 22 April 2020). It sets out guidance about ‘vulnerable people’ as parties or witnesses (including children), as well as describing the explosion of law over the last three years. It lays out what employment tribunal (ET) judges should actually do. It is praiseworthy in stressing, for every employment judge (and, indeed, other judges), the importance of:
early decision-making before any substantive tribunal or court rulings happen;
taking into account certain listed factors when considering reasonable adjustments to the court process, including, where appropriate, disability problems but also wider than that;
listening to both parties and specialist medical advice before ruling;
the link between the UK common law and the UN Convention on the Rights of Persons with Disabilities (UNCRPD) article 13 (access to justice);
employment judges being aware of the Equal Treatment Bench Book as guidance both in terms of the general structure through which they must view the problem and in terms of particular illnesses, conditions and other disabilities; and
the Advocate’s Gateway, and the handy lists that it generates for numerous disability-related problems with litigation.
All well and good. So why my ambivalence? If it is good advice, some people may think ‘that’s enough’ – certainly, advice is useful and I am proud to be associated with my chambers, Cloisters, which offers free outline papers about coronavirus and its effect on ordinary individuals’ health, employment and other problems. But it’s more than that, in the role that the president plays in our system of government.
In the development and implementation of policies to bring about compliance with the UNCRPD and, indeed, in other decision-making processes concerning issues relating to disabled people, the government (and, in this case, the ET president) is obliged to closely consult with and actively involve disabled people through their representative organisations (see UNCRPD article 4.3). Although I can’t be certain, I’m willing to bet that those organisations were not consulted at any stage. If they had been, they might have pointed out that in order to effectively implement the UK’s obligations under UNCRPD article 13, the duty is wider than the ET:
it applies to every legal proceeding in every court or tribunal;
it applies to every disabled individual, no matter how involved (for example, if I, as a barrister, had any reasonable adjustments); and
it applies to all those individuals, no matter what their attitude to litigation.
The president suggests that, ‘a good test of vulnerability might be whether the person is likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case’ (para 4, page 1). What about people who have no fear or distress about being involved with a case, like me? Am I not entitled to reasonable adjustments to do my job? I am certainly entitled under the UNCRPD – is it being breached by the president’s guidance?
The very idea that the ‘test’ is not disability but the more intangible concept, ‘vulnerability’ (which no one seems to define), must make us question, why use ‘vulnerability’ at all? Is it a covert criticism of the fact that disabled people use courts or tribunals? Is it ‘blaming’ the disabled person, when, in truth, the courts and tribunals system has been at fault for failing to make reasonable adjustments to the court process in every case as international law requires?
If one wanted an example of how working with representatives of disabled people in a positive way can be a boon rather than a burden, look no further than the UN in Asia – the Economic and Social Commission for Asia and the Pacific (ESCAP) – and its guidance about what member states must do to comply with the UNCRPD during the pandemic. It requires all governments:
to ensure that all pandemic responses are disability-inclusive, including through close consultation, meaningful participation and partnerships with persons with diverse disabilities;
to ensure that disabled people are provided with all goods and services;
to deliver public information in accessible formats;
to ensure COVID-19 related medical and quarantine policies and processes are accessible and disability-inclusive;
to ensure income security and livelihoods of disabled people; and
to protect the rights and well-being of disabled people living in institutions and facilities.
The ESCAP guidance starts by saying that the policy document was developed in consultation with persons with disabilities – and you can see from the common-sense approach which it adopts, that that consultation was very worthwhile.