In a pair of unrelated decisions (Buckle v Ashford and St Peter’s Hospital NHS Trust UKEAT/0054/20 and Brightman v TIAA Limited UKEAT/0318/19) handed down two Fridays apart Ben has scored successes for a Respondent and a Claimant (respectively) in appeals on significant points of procedure.
In the Brightman appeal Ben represented the Claimant in challenging a Tribunal’s decision to admit post-termination evidence at a trial involving disability discrimination claims under s.15 and s.20 EqA 2010 (along with a claim of unfair dismissal). The Tribunal below had accepted the Respondent’s assertion that this evidence (medical documentation relating to the Claimant’s health post-dismissal) was relevant to the question of whether a reasonable adjustment was liable to be effective.
The Claimant argued, both below and on appeal, that the evidence could not be relevant, that whether an act was discriminatory or not had to be able to be determined based on the circumstances as they pertained at that time. It was also contended on her behalf that, in any event, the Tribunal had unfairly drawn adverse inference against her for having sought (at an earlier hearing) a case management decision that Polkey and remedy would be separated from liability issues so that she would not have to put such evidence before the Tribunal at trial stage (a step sought to avoid incurring potentially unnecessary costs at that stage).
In a judgment of general application HHJ Tayler held that the Tribunal had erred both in admitting the evidence and also in drawing the adverse inference.
On the evidence point the proper analysis is that the only kind of evidence post-dating an alleged act of discrimination that can be relevant in respect of it is retrospective evidence (i.e. evidence about what the situation was at the time of alleged discrimination, not evidence about what the situation is after that point). As HHJ Tayler held, at 31:
… medical evidence obtained after the event that concerns the medical condition of the employee after a decision has been taken will generally be irrelevant to determining what the prognosis was at the time the decision was made. The prognosis at the time a decision is taken may turn out to have been incorrect. If an employee has unexpectedly recovered, or relapsed, that does not alter the prognosis at the time the decision was taken.
On the adverse inference point HHJ Tayler held, at 19, that whilst the EJ at Trial clearly disagreed with the earlier case management decision of her colleague, it was a legitimate decision and it was not for the latter Tribunal to go behind it.
In the Buckle appeal Ben represented the Respondent in resisting a challenge to the fairness of a trial in circumstances where the Tribunal had decided to reject the Claimant’s uncontested application for the first day of the hearing to be a reading day.
In the appeal the Claimant argued that because of serious mental health issues she had required the first day to acclimatise to the Tribunal environment and that when her reasonable expectation of being granted that adjustment was denied it derailed her, causing her to be disbelieved, and depriving her of a fair trial.
Claimant’s counsel argued that under the decision of the Northern Irish Court of Appeal in Galo v Bombardier Aerospace UK  IRLR 704 the Tribunal is under an obligation to identify adjustments of its own volition.
In successfully resisting the appeal on the Trust’s behalf Ben argued that the persuasive Galo decision was contradicted by the binding decision of the Court of Appeal of England and Wales in Anderson v Turning Point Eespro  ICR 1362 and that the Tribunal should not be held to have erred in failing to take into account the severity of the Claimant’s conditions when she was professionally legally represented and no detailed submissions had been advanced in support of why the adjustment was required.
Accepting this argument HHJ Tayler held, at 28, that generally the representative will be the voice of a party and that ‘where an adjustment is not requested, or a request is not pursued with any vigour, there may be little prospect of establishing that it really was so fundamental that without it there was an unfair hearing.’
Further the EAT held that there could be no reasonable expectation that an application of this kind would be granted, it remaining a matter for the Tribunal even if not resisted by a respondent.
The appeal in Buckle was accordingly dismissed. The Brightman matter is to be remitted to a fresh Tribunal for rehearing.
Ben was instructed for the Respondent by Emma Stokes of Capsticks LLP in Buckle and for the Claimant by Ronan Mulqueeney of DLG Legal Services in Brightman.