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.