Although tribunals have a wide discretion when it comes to striking out claims, the EAT has made clear in Bryce v Trident Group Security Ltd that if the claimant is disabled then they need to ensure that they have complied with the duty to consider making reasonable adjustments to accommodate the disabilities of the litigant. Otherwise, the matter will be remitted for reconsideration, as it was in this case.
After working two shifts for Trident as a door supervisor, Mr Bryce claimed various forms of disability discrimination on account of his Asperger’s syndrome and dyslexia. In addition, he lodged claims for whistle-blowing detriment and automatically unfair dismissal. In its response, the company argued that Mr Bryce had worked for them for a trial weekend, that he hadn’t been an employee and that they had been unaware of his disabilities.
The case had a long and tortuous procedural history covering about four years and four preliminary hearings. Mr Bryce attended the first three hearings while the company did not attend the first two, although it was represented at the third one. At this hearing, the judge made an unless order against Mr Bryce, ordering him to show that he was reasonably likely to succeed on his claims of dismissal. If not, his claim would be struck out.
At the fourth hearing, neither party appeared. The tribunal then made a second unless order requiring both parties, by a specified date, to explain the reason for their failure to attend; whether they wished to proceed; and whether they had complied with directions made at a previous hearing and if not, why not.
The company replied within the deadline, but Mr Bryce’s response to the order was eight days late (although this included the period of the Christmas bank holidays). The tribunal subsequently dismissed his claims under rule 38(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (ETR) on the basis that the order was sufficiently clear and there was no reason why he could not have complied.
Mr Bryce asked for that decision to be set aside under rule 38(2) ETR, arguing that it was in the interests of justice to do so. Firstly, he argued that his disabilities affected his communication abilities, memory and ability to read and understand dates; secondly, he had not been given long enough to comply with the unless order; and thirdly, the tribunal had failed to consider what reasonable adjustments he might need in order to comply with the order.
Whilst acknowledging that tribunals have a wide discretion under Rule 38(2) in determining the interests of justice, the EAT pointed out that tribunals also have a duty to consider making reasonable adjustments to accommodate the disabilities of litigants. In this case, it had failed to do so. In particular, when evaluating Mr Bryce’s explanation for failing to comply with the order, it did not weigh up whether his disability had prevented him from giving an explanation. As a result, the tribunal had failed properly to consider the extent to which his disabilities were the cause of his procedural failures.
Although it was quite possible that it would have decided that it did not need to make any adjustments, and/or had adjustments been made, that it would have reached the same decision, the fact remained that the tribunal did not consider whether adjustments were needed.
The EAT, therefore, remitted the matter to the tribunal to consider the application under rule 38(2) again.
This case is a reminder that service providers, such as employment tribunals, have a duty to make reasonable adjustments. Often, the adjustments would be similar to the ones that would need to be provided in an office environment, such as accessible documents, additional time or breaks to carry out tasks such as giving witness evidence. It could also possibly mean changing the way something is carried out, such as having a video hearing or dealing with submissions in writing, rather than at a hearing.