The ET has a duty to assist litigants in person – those who are not legally represented at trial
A judgment released by the Employment Appeal Tribunal (EAT) last week, in the case of Moustache v Chelsea and Westminster NHS Foundation, is an encouraging read for litigants in person (that is, Claimants who represent themselves and do not have access to a solicitor or barrister).
The Claimant Ms Moustache was a litigant in person who had worked for the Respondent for 28 years as a senior administrator until her dismissal.
She brought a claim against the Respondent for direct discrimination on grounds of disability (section 13 discrimination) and discrimination because of something arising in consequence of a disability (section 15 disability discrimination). She made it clear that the disabilities she relied on were mobility issues and a mental impairment.
A Preliminary Hearing took place, after which the Respondent drafted a list of issues (LOI). A list of issues is a document that sets out the questions which the Employment Tribunal judge and any lay panel members will attempt to answer during a hearing in order to arrive at a judgment. As is common in cases, the parties agreed this list.
Unfortunately there were several omissions in the list in that it:
- Failed to specify that the Claimant was relying on both mobility issues and a mental impairment as disabilities;
- Only made reference to one incident of unfavorable treatment in relation to the claim of discrimination arising from disability (despite the Claimant outlining several in her statement of case and witness statement);
- Did not include the Claimant’s claim that her dismissal was a result of something arising in consequence of her disability. Although the Claimant had not explicitly pleaded this, it was intended that the Employment Tribunal should adjudicate on this.
At a remote hearing, using the incomplete list of issues as their guide, the Employment Tribunal dismissed all of the Claimant’s claims. The Claimant appealed to the Employment Appeal Tribunal on the grounds that the ET had not considered her claim for discriminatory dismissal.
The EAT allowed the appeal, stating that the discriminatory dismissal claim should have been evident to both the Respondent and the Tribunal from the information supplied by the Claimant and therefore ought have been on the LOI and should have been considered. The EAT reminded the ET of their duties when dealing with a litigant in person which is to level the playing field for unrepresented parties. The EAT also warned against ‘slavish’ adherence to lists in such cases where the Claimant does not have the benefit of legal advice.
Interestingly, and as an aside, the EAT went on to criticise the use of remote hearings, particularly when Claimants have no legal representation, remarking that the format may impact upon communication between parties and the Tribunal and that cues which can instantly be picked up on in a face-to-face hearing can far more readily be missed.
This judgment will be a useful tool for litigants in person who wish to push back on the suggestion of a remote hearing and/or wish to remind the Employment Tribunal of its duties towards them in respect of removing disadvantage.