This case review was provided by the Claimant’s instructed Barrister, Emma McIlveen BL and concentrates on the reasonable adjustments made at tribunal to ensure that the Claimant could fully participate in proceedings. It was the first time in Northern Ireland that a Registered Intermediatory was appointed by an Industrial Tribunal. 

The Claimant presented a claim for unfair dismissal and failure to pay notice pay in November 2018. 

On the third day of the substantive hearing, during the Claimant’s cross examination, the Claimant’s representative raised concerns regarding whether the Claimant was effectively participating in the hearing. Until this point, no application for reasonable adjustments or special adjustments had been made. 

Following enquiries by the Tribunal, an application was made to adjourn the hearing to allow further enquiries to be made. 

A report was subsequently obtained from Dr John Eakin, Educational Psychologist. On the basis of his recommendations, the Claimant’s representatives requested the following adjustments: 

1. written cross examination questions to be provided to the Claimant in advance of giving evidence; 
2. the Claimant should be provided with a registered intermediary;  
3.  the hearing to proceed at a slower pace to allow the claimant to fairly answer the questions; 
4. question should be short and simple; 
5. new topic should be signposted;  

the following should be avoided:- 

1. idiomatic language, 
2. tag questions 
3. hypothetical or abstract questions 
4. the tribunal should intermittently check the Claimant’s understanding by asking the Claimant to repeat back what he thinks he has been asked/said; 
5. the tribunal should intervene if there is a potential for misunderstanding or rephrase questions for the witness if necessary; and 
6. the Claimant should be given regular breaks during the hearing. 

The Respondent’s representative initially objected to providing written cross examination questions to the Claimant in advance.  

Following a case management hearing, the parties agreed that the President of the Industrial Tribunal should appoint a registered intermediatory and that the intermediary should meet with the Claimant in order to further assess his needs when giving evidence.  

The Claimant accordingly met with the intermediatory, Ms Suzanne Smith, who prepared a report to assist the Tribunal. The report confirmed the intermediary’s role was to assist communication with the Claimant and to assist the claimant to communicate with others. This report further confirmed that it was important that a ground rules hearing should take place before the Claimant gave his evidence. 

Both parties also had the opportunity to lodge written submissions on whether the evidence should be restarted. The Claimant’s representative relied upon relevant authorities from the Advocate’s Gateway, to which she believed parallels could be drawn on judicial control of questioning and vetting of advocates’ questions before trial. In response, the Respondent’s representative argued that the issues were “to a large extent, uncharted territory in the context of tribunal hearings and employment law context”. 

The Respondent’s representative ultimately confirmed that he accepted the content of both Dr Eakin’s and Ms Smith’s reports and accepted the recommendations, save for the provision of written questions to the Claimant. He did however agree to provide his written cross examination questions. He further agreed to provide his written cross examination questions in advance to the intermediary. 

In his closing submission, the Respondent’s representative characterised the steps taken by the Tribunal as “extra-ordinary”, whilst noting that they had been taken with the full co-operation of the Respondent. The Tribunal on the other hand, characterised the steps taken by it as necessary in light of the reports which were placed before it, in light of the agreed position of the representatives and in light of the overriding objective and the principles set forth in the case Galo. 

The Claimant ultimately won his case for unfair dismissal. 

Practical lessons  

This case provides an interesting insight into what adjustments can be made for employment hearings following on from the decision in Galo v Bombardier Aerospace [2016] NICA 25.  It is likely that this case will be relied upon at further ground rules hearings in Northern Ireland and potentially beyond. When representing vulnerable claimants, it is essential to be mindful of the Equal Treatment Bench Book (https://www.judiciary.uk/wp-content/uploads/2021/02/Equal-Treatment-Bench-Book-February-2021-1.pdf ), which provides helpful guidance on ground rules hearings and adjustments which can be made to cross-examination. 

The Claimant was represented by Emma McIlveen, Barrister at Law instructed by John J McNally solicitors. The Respondent by Mr J Algazy QC, instructed by the Respondent’s in-house legal department. 

For an alternative view of this case from Jason Elliott BL, please click HERE. Jason’s review concentrates on the procedural fairness of a dismissal and the tests that Tribunal’s apply. 

NI Tribunal decisions are available on the OITFET website http://www.employmenttribunalsni.co.uk/