Employment Appeal Tribunal Upholds Right to Record Proceedings as Reasonable Adjustment for Disabled Litigants

Citation: [2024] EAT 16
Judgment on

Introduction

In the Employment Appeal Tribunal case of Christian Abanda Bella v Barclays Execution Services Limited & Ors, a key area of dispute centered around the request to record tribunal proceedings, a request linked to the claimant’s disabilities and his need for reasonable adjustments. This analysis discusses the legal principles that played a crucial role in the tribunal’s outcome and how they were applied to reach a verdict.

Key Facts

Christian Abanda Bella, the appellant, requested permission to record a three-day preliminary hearing. His application was based on his diagnosis of anxiety, depression, PTSD, paranoia, and psychosis, which he argued impacted his cognitive bandwidth affecting his memory, focus, and mood. An Employment Judge initially declined the application based on the limited evidence of his disability and observed capabilities during previous hearings. Following further detailed submissions from Bella supported by a psychotherapist report, a second decision still denied recording the proceedings with an option given to have HMCTS record the hearing. Bella’s predicament brought to light the Employment Tribunal’s duty to make reasonable adjustments for disabled litigants and the relevancy of specific prior case laws addressing such circumstances.

The primary legal principles at the heart of this case stem from the Employment Tribunal’s obligations under general law and case law precedents, notably:

  1. Duty to Make Reasonable Adjustments:

    • General Law: As captured in Rackham v NHS Professionals Ltd, tribunals must make reasonable adjustments for the participation of disabled individuals. Employment tribunals are not directly bound by the Equality Act 2010 concerning judicial discretion, but as noted in J v K, they must account for disabilities as a relevant consideration under general law.

  2. Guidance in Recording Tribunal Proceedings:

    • Contempt of Court Act 1981: Section 9(1) prohibits the use of recording instruments in court without leave, which sets a basis for requests for recording as a reasonable adjustment.
    • Heal v University of Oxford: The EAT provided an outline of factors to consider for recording requests due to a disability-related inability to take notes or follow proceedings.

The Employment Tribunal’s decision in this case was critiqued for not giving appropriate weight to the evidence provided by Bella’s psychotherapist, misjudging the utility of the recordings for Bella, and not adhering closely to the guidance provided by Heal v University of Oxford.

Outcomes

The EAT recognized several errors in the Employment Tribunal’s approach:

  • Dismissiveness of Psychotherapist’s Evidence: The EAT criticized the Employment Judge for not adequately considering the professional opinions of Bella’s psychotherapist.
  • Misinterpretation of the Utility of Recordings: The recordings were vital for Bella to participate effectively, which was overlooked by the Employment Judge.
  • Non-compliance with Heal Guidelines: The Employment Judge did not fully consider the factors established by Heal v University of Oxford.

Consequently, the EAT found these points sufficiently erroneous to allow Bella’s appeal and declared that the decision not to allow recording as a reasonable adjustment was unlawful.

Conclusion

The EAT’s decision in Christian Abanda Bella v Barclays Execution Services Limited & Ors underscores the importance of tribunals recognizing and adjusting to the needs of disabled litigants, in order to ensure fair access to justice. This decision reinforces adherence to the established framework in Heal v University of Oxford when considering requests for reasonable adjustments due to disabilities. It also places an onus on the Employment Tribunal to give appropriate weight to professional evidence and to be cautious against substituting its own judgments on the effects of disabilities without due consideration. The outcome of this case serves as a pivotal reminder of the tribunal’s duty to ensure that disability-related requests are dealt with compassionately and in conformity with the law.