NI: Tribunal’s procedural unfairness highlighted need for training of judiciary in the needs of the disabled
The Court of Appeal in Northern Ireland has allowed an appeal from the decision of an Industrial Tribunal (IT) which dismissed the claim of a Slovakian national with Asperger’s Syndrome for unlawful racial discrimination, unlawful disability discrimination, victimisation, harassment on grounds of his disability and race, detriment, and unfair dismissal.
In Lord Justice Gillen’s judgement, it was emphasised that the appeal raised the question “as to the fairness of hearings related to a person with such a disability”, however the Court only gave judgment on the procedural fairness of the hearing, consequently referring the matter back to a differently constituted Tribunal.
The grounds of appeal
The case made out on behalf of the appellant Mr Patrick Galo was that “he was not accorded a fair hearing of his claim because the Tribunal failed to take properly into account his disability and his medical evidence in circumstances where he was not represented from August 2014 onwards and in particular at the Tribunal hearing”.
In particular Mr Galo submitted that a range of Tribunal acts and omissions were tainted with unlawfulness including (1) failure to make reasonable adjustments for his disability (2) unreasonably failing to adjourn the case on a number of occasions (3) placing unfair and oppressive demands on the appellant in relation to the hearing and in the course of the hearing week (4) striking out all claims except his unfair dismissal claim (5) proceeding to hear his unfair dismissal claim in his absence and (6) in the face of medical evidence supportive of an adjournment, and dismissing his unfair dismissal claim.
Mr Galo had been employed by Bombardier Aerospace UK from 29 October 2007 until his employment was terminated on foot of allegations of gross misconduct which led to the appellant being suspended on full pay from March 2013.
In April 2013, Mr Galo lodged proceedings in the IT complaining of victimisation as well as a further complaint with the IT on the grounds that he had been unfairly dismissed and that his treatment constituted victimisation, disability discrimination, harassment and detriment.
On 23 January 2014 at a disciplinary hearing the respondent determined that the appellant’s behaviour had constituted gross misconduct and his employment was terminated.
Gillen LJ stated that it was of substantial significance to observe that Bombardier had secured a report on Mr Galo from a clinical psychologist Dr Wendy Lusty – who had assessed Mr Galo on two occasions and provided a report in September 2013.
In the report, Dr Lusty referred to a psychology report from April 2013 provided by Joanne Douglas, Chartered Educational Psychologist who stated that the appellant met the diagnostic criteria for Asperger’s Syndrome (AS).
Gillen LJ emphasised that it should have been recognised from the outset that this was a case involving a person under a disability of mental health, and Bombardier had accepted this from an early stage in 2013. Gillen LJ stated that as soon as the report from Dr Lusty had emerged, enquiries should have been made as to whether reasonable adjustments to the process were necessary - in particular an early “ground rules” case management discussion should have been convened to meet the specific challenges of Mr Galo’s condition.
Had this been done, the procedure to be adopted and the adjustments that were necessary would have been considered through a completely different prism from that which occurred.
Namely, measures that surfaced in Rackham v MHS Professional Ltd (UKEAT/0110/15 LA) would have been considered.
Gillen LJ stated that no positive thought had been given to the need to obtain a report on Mr Galo’s condition –Dr Lusty’s report would have been sufficient to govern a fresh attitude to Mr Galo’s case and how it was to be managed.
Gillen LJ indicated that the duty was on the Tribunal regarding adjustment, and that even if there was no application made for adjustment on behalf of Mr Galo, there were “clear indiciae of observed agitation and frustration” that should have put the Tribunal on notice of the need to investigate the precise nature and diagnosis of his condition. Consequently, this case highlighted “the need for there to be better training of both judiciary and the legal profession in the needs of the disabled”.
Gillen LJ opined that it was a “matter of great concern” that no reference had been made to the Equal Treatment Bench Book by the IT. It was unsatisfactory that the Tribunal had the 2004 edition, but not the up-to-date 2013 version – a different approach would have been adopted had this been consulted.
Additionally, no attempt was made to explore alternative representations for Mr Galo once he lost the services of his solicitor in August 2014 – as soon as it became apparent, steps ought to have been taken to inform him of the possibilities of getting assistance from various services.
Gillen LJ was also satisfied that there was clear medical evidence that Mr Galo was not in a position to proceed, and the determination by the Tribunal that his failure to attend on 13 November “was deliberate and the timing of his e-mail scheduled to disrupt any planned hearing” was patently unjustified given the medical evidence.
Finally, Gillen LJ was at odds with the conclusion that the Tribunal “would not have any power to oblige the claimant to undergo an assessment” – there was already a good assessment from Dr Lusty, even without this there was no attempt to invite any of the doctors to attend to outline his condition in detail or to invite the appellant to undergo examination by a doctor on behalf of the IT, and thus to permit the Tribunal to come to its own conclusion as to his mental state.
In the circumstances, the Court concluded that Mr Galo did not benefit from a fair procedural hearing, and allowing the appeal, the matter was referred back for a hearing before a differently constituted Tribunal.