Member Article

Employment Tribunals have a duty to make reasonable adjustments where a participant is disadvantaged, for example due to disability, to ensure fairness in proceedings. We share our recent experiences of how the Tribunals apply this duty in practice.

Accommodating someone with hearing loss

Tribunals can help to arrange for British Sign Language (BSL) interpreters to be present at hearings to assist a party with hearing loss, however procedurally this can take a lot of time to confirm, and parties should be prepared to make further adjustments if needed. 

Our top tips: 

1. Inform the Tribunal at the earliest opportunity that a BSL interpreter is needed. 
   • You will likely receive confirmation that your request has been received but that bookings will be confirmed closer to the hearing (sometimes as close as a week before the hearing!). We would recommend diarising time to chase the Tribunal on this, for example each week in the run up to the hearing. 
2. Be prepared to be flexible.
   • Sometimes, interpreters will appear via CVP in which case extra steps should be taken on the day to ensure that the party needing assistance is positioned close to the camera so that they can be seen clearly by the interpreter. 
   • Interpreters cannot always be sourced for the time requested, as such the order of witnesses may need to be changed last minute to coincide with interpreter availability. 
   • It is difficult to estimate how long a particular witness will be giving evidence so it is best to over-request the number of interpreters to make sure that a witness can finish their evidence - bookings can always be cancelled!
3. Make use of available technology.
   • If it is not possible for an interpreter to be present for the entire duration of the proceedings, the Tribunal may have access to a hearing loop system. This works by transmitting sound via a magnetic field to a microphone and then to an amplifier; the loop acts like an ariel by sending the signal from the amplifier to the individual’s hearing aid. 
   • That being said, technology does not always run smoothly so parties should consider what other practical adjustments can be made. For example, if the deaf party can lip read, can they be positioned closer to the front of the Tribunal to make it easier for them to do this? 

Requesting a ‘hybrid hearing’ at short notice 

Unfortunately, there is always a risk that something unforeseeable happens close to a hearing, such as a sudden medical emergency of a party due to attend. This could put a whole case at jeopardy, for example if a key witness is no longer able to attend a final hearing. However, we have noticed that Tribunals are showing a willingness to convert an in person hearing to a ‘hybrid hearing’ which allows the party to attend via CVP while everyone else attends in person.

Our top tips:

1. Make an application to the Tribunal as soon as possible after discovering the problem, outlining clear reasons why the affected party cannot attend in person and be prepared to provide evidence, such as medical records. Sometimes the Tribunal will grant the request without requesting evidence, however our recommendation is to gather evidence just in case this is later requested before or at the hearing. 
2. Ensure that all parties are copied into any application to the Tribunal. However, be mindful of sharing information that is personal to the individual involved without obtaining their consent. One tactic could be to copy all parties into the application and offer to send any required medical evidence later, at which point discussions could be had about whether it is necessary to share this with all parties. 
3. It is best practice to include reasons why allowing the adjustment would not prejudice the interests of the Tribunal or other parties. For example, expense and potential delays may be saved and parties can still be fully cross-examined via CVP. 

Members of the Tribunal may also require adjustments. In our experience, hearings have been converted to hybrid ones at the last minute, for example where a member of the panel was unable to travel to Tribunal in person due to train strikes. This demonstrates that adjustments can and have been made as late as the day of the hearing, so it is always worth asking. If the adjustment is reasonable and practicable, the Tribunal may well agree to it. 

Supporting a party with sight loss 

As above, members of the Tribunal may also require adjustments as much as any other party to the proceedings and parties may need to do things differently to accommodate them during the hearing. Sometimes parties may not be notified until the day of the hearing that this is needed. We share our experience of how proceedings were adapted to assist a member of the panel who is blind, however these tips can be adapted and used to support any party to proceedings with sight loss. 

Our top tips

1. Parties should speak loudly and clearly, especially when referring to documents in the bundle and allow extra time for all participants to find the relevant document. This is especially important if they are appearing via CVP.
2. Often blind people are assisted by guide dogs so you should expect that you may be joined by them in Tribunal and should not be put off by noises animals might make!
3. Screen reading software may be used which allows a computer to read aloud text, images and more. However, as with all technology, there are limitations. We have seen that difficulties can be caused where parties are referencing sections of text in a document which are in different colours. Although the software can find text by colour, this can take significant time. Parties can help by reading out passages in full rather than just referring to page or paragraph numbers.

Key takeaways

Tribunals are willing to make adjustments where necessary but a request for an adjustment does not simply equate to an entitlement to that adjustment being made. The party requesting the adjustment must apply to the Tribunal in good time, and often will need to provide evidence in support as well as to consider and address the impact to other parties to the proceedings.

Nevertheless, Tribunals have demonstrated a willingness to be flexible so that no one is disadvantaged in proceedings, whether a witness, member of the panel or an observer. All parties should be prepared to be flexible at any point in proceedings to accommodate anyone who may need it. 

 

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