1 January 2016

Despite the squeeze on employment tribunal claims caused by the introduction of fees, the close of 2015 saw several important cases dealing with procedure in the tribunals.

• the EAT held that there was no need for fresh early conciliation when an amendment added a new cause of action : Science Warehouse v Mills (UKEAT/0224/15). The logic is inescapable, given that the prospective claimant is not required to give any details of the claim during the initial process of early conciliation
• some limited guidance was given on the question of when an interpreter was crucial to proceedings in Hak v St Christopher's Fellowship (UKEAT/0446/14). Mr Hak, a Cambodian whose first language was Khmer asked for an interpreter, in advance of a preliminary hearing to consider whether his claims of unfair dismissal and racial discrimination should be struck out . On the day of the hearing, no interpreter was available and the judge asked whether he was happy to proceed. He said that he was, the hearing went ahead and his case was struck out as having no reasonable prospect of success. He appealed on the basis that without a Khmer interpreter he had no reasonable opportunity to advance his case. It was held that it was not unfair of the judge to ask him whether he was happy to proceed in the absence of an interpreter. In its decision, the EAT took into account that the claimant had demonstrated facility with English to his employer and to colleagues, and had had no contact with any Khmer speakers in the preceding 10 years. In the circumstances, the decision is understandable, but clearly tribunals need to be astute to ensure that there is no unfairness in proceeding in such circumstances. The ability to understand proceedings is crucial to the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights.
• the EAT held that when considering whether there is conduct extending over a period so as to affect the point at which time begins to run in a discrimination claim, complaints of different types of discrimination could be taken together: Robinson v Royal Surrey County Hospital NHS Trust (UKEAT/0311/14). So in appropriate circumstances complaints of direct discrimination and a failure to make reasonable adjustments could be taken together. The case was decided on other grounds, so the point about time limits is technically obiter but it would seem to be in accord with commonsense and with the purpose of the statute.
• it has been held that an employment judge must give adequate reasons when considering whether to grant an application to adjourn: British Security Industry Association v Brown (UKEAT/0228/15). In this case, a final hearing was re-listed on a date when the respondent's key witness had a pre-arranged commitment abroad for the re-listed date. The respondent's request for a postponemnt was refused, but no reference was made to the points which had been raised. The EAT held that the judge should have given reasons, which could be brief, but must address the key points made in the application. The decision must also be a reasonable one, and the reasons should explain how the decision is in accordance with the overriding objective. The decision in this case was set aside and the respondent's request for postponement granted. Employment judges will no doubt be careful to respond to the clear steer given by the EAT, and parties will hold them to account if they are not!