Authors:John Horan
Last updated:2023-12-01
Marc Bloomfield
Description: Discrimination
Habib: the ETBB strikes back!
John Horan analyses an employment case with profound implications, where HHJ Beard allowed the claimant’s appeal on grounds including not considering what the Equal treatment bench book says when it comes to assessing the claimant’s credibility.
In Habib v Dave Whelan Sports Limited [2023] EAT 113, 23 August 2023, the claimant had brought claims of direct discrimination on the grounds of her age, sex and religion or belief, as well as harassment relating to her age and sex, among other things. She had been represented by counsel but only in one case management hearing (there had been several) and at the final trial. Counsel at this stage had been instructed a week before the trial commenced.
The claimant was dyslexic and suffered from migraines, as well as speaking English only as a third language. This was acknowledged as common ground for both parties, although no specific adjustments were asked for. Her disability would be taken into account during the final hearing so that a fair hearing could take place.
When the final hearing began, the respondent had delayed providing the claimant with both the bundle and the respondent’s witness statements, and so the employment tribunal (ET) made modest reasonable adjustments to allow the claimant time to absorb the respondent’s case and add to the respondent’s bundle any documents that she felt were necessary.
During her evidence, the claimant ‘exhibited considerable difficulty in finding relevant pages and on focusing on the content’ of the evidence before the ET (Habib EAT judgment, para 7). A helper was moved to sit next to the claimant in order to assist her in finding relevant page numbers. The ET noted that during cross-examination of the respondent’s witnesses, the claimant ‘was constantly referring to the documents and highlighting passages and passing notes to her counsel … there was apparently a marked difference between the claimant’s ability to follow questions and documents when she was at the witness table to when she was sitting next to her counsel … when she had no difficulty in reading documents and passing notes, whilst at the same time keeping up with the course of the evidence’ (Habib EAT judgment, para 9).
The ET noted in its judgment that there were no reports before it to explain the variance in the claimant’s behaviour. It followed the respondent’s counsel’s submission (when the evidence was over) that there was ‘an element of performance and exaggeration in the claimant’s difficulties’ and the claimant herself showed ‘elements of manipulation or attempted to manipulate dealings’ before the tribunal (Habib EAT judgment, para 9).
Having considered the evidence as a whole, the ET found that ‘the claimant’s recollection of events was in many instances of a self-serving nature, in that she chose to recall what suited her and what put her in the best light and chose not to recall what other people had said or done at the time that might put them in a favourable light’ (Habib EAT judgment, para 9). It rejected all elements of the claimant’s claims on the basis that it did not believe her. At no point did the ET put doubts about her credibility to her.
The claimant appealed and, as part of the appeal, raised that the ET:
1had not consulted the Equal treatment bench book (ETBB) (Judicial College, February 2021 (revised April 2023)); or
2given the claimant an opportunity to respond to the very serious findings that it made about her credibility.
As such, the findings were perverse or not Meek-compliant (Meek v Birmingham City Council [1987] IRLR 250; BAILII [1987] EWCA Civ 9).
The EAT noted that the ETBB states that, while it cannot give a medical analysis for each and every individual case, dyslexia is the most common of a family of related conditions known as specific learning difficulties (SLD). Having set out that SLD can manifest itself with difficulties in reading, writing and spelling, the ETBB points out that the core elements are difficulties with processing language-based information and with short term and working memory, following this up with a list of common difficulties, including: ‘the inability to: retain information without notes; hold on to several pieces of information at the same time; … cope with compound questions’ (ETBB page 409).
The ETBB goes on to say: ‘People with [SLD] will be concerned about how their behaviour might be perceived: inconsistencies could imply untruthfulness. Failure to grasp the point of a question could come across as evasive. Lack of eye contact could be misinterpreted as being “shifty” and an over-loud voice might be regarded as aggressive. The overriding worry is that a loss of credibility occurs when they do not “perform” as expected’ (ETBB, page 410). The EAT noted that the ETBB reassures someone with SLD that: ‘Misunderstandings on their part will not be treated as evasiveness and inconsistencies will not be regarded as indications of untruthfulness’ (ETBB, page 412).
HHJ Beard cited the case of Rackham v NHS Professionals Ltd UKEAT/0110/15 as authority for a duty on the ET to make reasonable adjustments for a disabled party.1See further May 2016 Legal Action 8. He said Rackham also determines that ETs should make use of the guidance in the ETBB to ‘ensure effective access to justice and to “enable the party to give the full and proper account they would wish to give to the tribunal, as best as they can be helped to give it”’ (Habib, para 13).
HHJ Beard then turned to the line of cases, which starts with Anderson v Turning Point Eespro [2019] EWCA Civ 815, where the Court of Appeal established that a court or tribunal should make such reasonable adjustments as to assist it in a fair hearing, and ends with Buckle v Ashford and St Peter’s Hospital NHS Trust UKEAT/0054/20/DA, where HHJ Tayler said:
The approach to be adopted in considering appeals against decisions about medical issues, and adjustments, depends on the nature of the decision taken. At one end of the spectrum a decision whether to postpone a hearing because of the ill-health of a claimant is a case management decision that may only be challenged on Wednesbury grounds ... Conversely, there may be circumstances in which a party requires an adjustment that is of such fundamental importance that without it being made there cannot be a fair hearing. In such a case it is for the appellate court to determine as a matter of substantive fairness whether the adjustment requested was such that the failure to make it rendered the hearing unfair because the party was not able to sufficiently participate in the hearing and so was not given a fair trial, just as would be the case if the hearing was improperly conducted in the party’s absence (Buckle, paras 22–23).
HHJ Beard said that the fundamental point in the Buckle judgment was that there needs to be evidence over what adjustment would alleviate the disadvantage caused to a party by a disability. Without that, there can be no fair hearing. The court is obliged to consider what that evidence is and, if there isn’t any, to order its production; or else the hearing is unfair and so the appellate court or tribunal must intervene.
HHJ Beard said that the claimant having a disability, ie, dyslexia, was common ground before the parties. He said that the extent of the claimant’s difficulties caused by dyslexia were not commented on by medical evidence. For the ET to comply with its duties to ensure a fair hearing, it must make adjustments to allow effective participation. In order to do that, it must be able to identify the specific barriers that a condition or disability causes and, in order to do that, it must have some evidence, by an expert or not, to understand those barriers. As HHJ Beard pointed out, a court or tribunal can only operate on the evidence before it.
In this case, it was common ground that the claimant was suffering from dyslexia and her credibility was questioned by the ET. This was of particular importance to the application of the usual standards applied to witnesses, given the warnings in the ETBB – see above. It was an open question whether the disability was the cause or whether she was lying. Given that the ET was about to make a critical finding about the claimant’s credibility, and given what the ETBB says about particular disabilities, and that a reasonable ET should consider what the ETBB says, it should have sought a medical expert’s view on the degree to which that applied in the individual claimant’s case, and anything the claimant had to say about it, before determining whether the difficulties were due to the claimant’s lack of credibility or her dyslexia. As such, the judgment was not Meek-compliant; the EAT referred the case back for a full hearing before another tribunal.
This is an important case in a number of ways:
First, it establishes that where a person suffers from a disability and an ET considers their credibility, it must consider whether the ETBB has something to say about it and, if so, whether to order any additional evidence and whether to allow the person an opportunity to address the credibility issue. Findings on credibility are of fundamental importance in the huge majority of cases.
Second, it highlights that every single lawyer should not think they can get away with saying they are aware of the ETBB but not taking seriously its guidance and, for example, reading it. If the ETBB has something to say about a disabled person, it needs to be addressed seriously by the court or tribunal before it makes adverse findings on credibility. Counsel and solicitors, as well as Law Centre workers, should take this on board: unless they are knowledgeable about the ETBB, its guidance on disabled and other vulnerable adults, and its specific guidance about a multitude of different disabilities, they cannot hope to give a disabled client full advice on appeal.
Third, the implications, if you are advising respondents, are just as profound: counsel and solicitors acting for the respondent would be well advised to know what the ETBB has to say about specific disabilities that a disabled claimant has and, if necessary, warn the court; otherwise they are going to find their clients facing an appellate court sending them back!
Fourth, this demonstrates the role of disabled people’s rights as encapsulated in Civil Procedure Rules 1998 (CPR) r1.6 and Practice Direction 1A (Participation of vulnerable parties or witnesses) at the full merits hearing stage. In this case, the ET was assessing the credibility of the claimant, not working out what reasonable adjustments were needed. It did not go into the ETBB, and so its conduct of this exercise was not Meek-compliant – a classic example of the ET being engaged in some completely different exercise to working out what reasonable adjustments were required yet having scant regard to the person’s disability and the ETBB’s guidance.
Lastly, this case is important for every judge who sits in first instance before every court or tribunal that looks to the CPR as the ultimate guide to the court or tribunal’s procedure. Judges in wider jurisdictions than the ET would be wise to learn the lesson that Habib contains about the ETBB and its effect on disabled claimants and, more seriously, the necessity to consult the ETBB for cases involving, for example, judicial review, civil trials and judicially-led alternative dispute resolutions. The notes to CPR r1.6 are, to a large extent, helpful but do not mention the ETBB, despite the ETBB’s authors including Court of Appeal, High Court and county court judges. I wonder whether High Court or county court judges might think that such an important document, which has led to this successful appeal, ought to have been mentioned in the White Book.
1     See further May 2016 Legal Action 8. »