N Moustache v Chelsea and Westminster NHS Foundation Trust
[2022] EAT 204
F Habib v Dave Whelan Sports Limited t/a DW Fitness First
23 August 2023
[2023] EAT 113
Employment Appeal Tribunal
The court ruled that the first trial wasn't fair because the judge didn't understand how the claimant's dyslexia affected her testimony. They didn't follow the rules for dealing with disabled witnesses. So, there will be a new trial with a different judge.
Key Facts
- •Claimant (Habib) brought claims of discrimination and harassment against Respondent (Dave Whelan Sports Limited).
- •Claimant is dyslexic and has other health issues.
- •Employment Tribunal (ET) rejected all claims.
- •Claimant appealed, focusing on the ET's handling of her dyslexia and its impact on the fairness of the hearing.
- •ET's judgment relied on Claimant's 'performance' during cross-examination to assess credibility without considering dyslexia.
- •ET failed to refer to Presidential Guidance on vulnerable witnesses and the Equal Treatment Bench Book (ETBB).
Legal Principles
Employment Tribunals must make reasonable adjustments for disabled parties.
Rackham v NHS Professionals Ltd
Tribunals should use guidance in the ETBB to ensure effective access to justice.
Rackham v NHS Professionals Ltd
In most cases, it's appropriate for a party's representative to suggest measures to prevent disadvantage, but the tribunal retains ultimate responsibility for a fair hearing.
Anderson v Turning Point Eespro
Case management decisions are subject to Wednesbury review, while substantive hearing fairness is assessed for proportionality.
Phelan v Richardson Rogers Ltd, Buckle v Ashford & St. Peter’s NHS Hospital Trust
An unfair trial necessitates a complete retrial.
Serafin v Makiewicz
ETs must consider the ETBB guidance on dyslexia, acknowledging that inconsistencies might stem from the condition, not untruthfulness.
Equal Treatment Bench Book (ETBB)
Outcomes
Appeal allowed on ground 8 (unfair hearing).
ET failed to consider the Claimant's dyslexia and apply the ETBB guidance when assessing credibility, leading to a fundamentally unfair hearing.
Case remitted for a complete retrial before a different tribunal panel.
The unfairness of the original hearing necessitates a fresh start.