The claimant, an individual who had dyslexia-related learning disabilities, was successful in her case for constructive dismissal and discrimination claims against the respondent.   The issue arising relates to the remedy hearing.

The Tribunal ordered the claimant to prepare and serve a schedule of loss, evidence of mitigation of loss and evidence of her injury to feelings in relation to the discrimination claims (based upon both disability and race). The claimant outlined that she had registered with recruitment agencies before then starting a teaching course (which allowed her to obtain educator positions subsequently).  The Tribunal made a finding that the claimant had not been actively engaged in looking for work. Additionally, the change in vocation was such that it went against a compensatory award.  The employee also gave evidence of her injury to feelings with an award of £4,000 being made.

The claimant asked for a reconsideration outlining that she had fresh evidence relating to mitigation and that she struggled to give evidence due to her disability.  It should be noted that the claimant was a litigant in person.  The Tribunal refused this citing that the fresh evidence was such that it supported their initial conclusion and there was no reasonable prospect of success in varying the judgment.

The claimant appealed this to the EAT.  The EAT found that the Tribunal could not be criticised for the finding when it came to mitigation.  However, when it came to injury to feelings the EAT found that there were factors which meant that she did not have a fair opportunity to present herself when it came to injury to feelings.   It was within the Tribunal’s power to reconsider the judgment on those grounds and it had erred in law in failing to reconsider the injury to feelings aspect.  Whilst the respondent argued that reasonable adjustments had been made for the remedy hearing the EAT stated it was not in a position to assess whether the reconsideration application raised additional matters which could have impacted the fairness of that remedy hearing.  As a result, the case was remitted to the Tribunal.

Practical Lessons:

This case demonstrates the extent to which the characteristics, such as disability, of the participants in the Tribunal have to be taken into account for ensuring that there is fairness in presenting the case.   In this situation, the claimant had difficulty in explaining her injury to feelings as a result of the discriminatory treatment she had faced.   The Tribunal, as outlined by the EAT, ought to have allowed the reconsideration on those grounds thus ensuring that the claimant was able to properly present herself and her arguments.