Most claims at the EAT concern the substance of the claim rather than the fairness of the Tribunal procedure. The EAT case of Ms Mehta v Child Support Agency did concern an issue with procedural fairness.
The Tribunal case was listed for two days. The Respondent’s first two witnesses read their statements out loud and were cross examined. At the end of the first day the Judge suggested that the Tribunal read the statements to themselves overnight. No objection was raised. The next day the Claimant (who was unrepresented) did not, therefore, read her statement aloud but was cross examined on the contents.
She appealed on (amongst others) the grounds that she was not allowed to ‘go through her witness statement’.
The EAT looking at the notes of the hearing found that the Claimant did agree to the course proposed and that it was therefore not unfair for the Tribunal to follow that course. They then went on to look at whether the course would have been unfair if the Tribunal had imposed it without consent. On this point, the EAT did not make a definitive ruling. However they did make the following points for use in future cases:-
- it is not a requirement of fairness in every case that the statements be read aloud in full, or at all, particularly where ‘statements are lawyer-drafted and traverse masses of detailed material.’
- there may, in particular cases, be good reason for a statement to be read aloud,…. to enable the Claimant to feel they had their say ….. where the material is technical … or requires elucidation’.
- they would expect the parties to proceed by agreement. A judge has responsibility where a party in unrepresented to ensure they understand the course to which they are being asked to agree.
A useful case if this ever comes up as a point of practice.