Dealing with the ever increasing number of Litigants in Person
Cuts to legal aid, increased court fees and the proliferation of ‘information’ available on the internet have all increased the number of litigants in person in the courts and tribunals of this land over the last few years, and the Employment Tribunal is no exception.
But what is the Tribunals approach and how does it affect the conduct of the case? The starting point, as it always is, is the Overriding Objective contained within Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It states: ‘The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable- (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.’
The appellate courts have been grappling with the balance to be struck at first instance between assisting a litigant and loosening impartiality. Some examples follow: In the case of Higgins v Home Office [2015] UKEAT/0296/14/LA, the claimant had submitted her claim form more than 6 years late. She had ticked the box claiming unfair dismissal and within the muddled ET1 form had indicated the compensation that she sought. The claim was rejected because i) it was brought outside of time limits; ii) the remedies sought did not appear to be those the Tribunal can award; and iii) the claimant did not appear to be claiming unfair dismissal. The claimant appealed. The EAT allowed the appeal. The order was a drastic order, having been made without a hearing and submissions. Such orders under Rule 12 in the EAT’s opinion should only be made in the most plain and obvious cases. Any borderline cases, or cases lacking clarity, or where there is a muddle involving a litigant in person, should be disposed of under Rule 27.
In East of England Ambulance Service NHS Trust v Saunders [2015] ICR 293, the Claimant had made a complaint that she had been discriminated against and unfairly dismissed. It had been agreed that a preliminary issue was whether she was, as she claimed, disabled within the meaning of the Equality Act 2010. The ET heard evidence and then retired to discuss their conclusion. At that stage, and without prior reference to the parties, it began to conduct research on the Internet. After questioning the Claimant the next day, the Respondent asked the ET to recuse itself because it had exceeded its role in investigating evidence for itself, which neither party had sought to put before it, and had assumed the truth of that which it had itself uncovered from the Internet. The Respondent also claimed that the judge was biased towards the claimant. The ET refused to recuse itself and the respondent appealed. The EAT allowed the appeal. Stating at paragraph 46, page 305: ‘A degree of care is required by the tribunal in assisting one party, it should be cautious not to cross the line between impartiality (which it must maintain) and acting as an advocate (which it must never do).’
In U v Butler and Wilson [2014] UKEAT/0354/13, the Claimant was, at the time, a litigant in person who suffered a disability in the form of a mental condition. The issue here was that the Claimant had previously failed to comply with various case management orders and then was late attending a hearing. When he did finally arrive at the hearing the Claimant said he was having a psychotic episode and that his bundle was still at the printer’s next door. By this time the EJ had already struck out his claims. The EJ invited him to address her whether she should review that decision. He orally asked for a review which was undertaken by the EJ there and then but she declined to revoke her decision. The claimant appealed on the narrow basis that the EJ had failed to consider whether to adjourn for a short time in order to enable the appellant to recover his lucidity and/or to enable him to obtain, from the printer’s next door, the bundle which, he said, he had brought and upon which, implicitly, he would wish to rely.
The EAT allowed the appeal. The Employment Judge failed properly to exercise her case management powers to adjourn an oral application for a review, of a decision made at a hearing, to permit the appellant the opportunity to reflect on what course he wished to pursue. She should also have explained to him that one option available to him was to make a written application for a review rather than proceed immediately with an oral application.
In Johnson v Manpower Direct (UK) Ltd [2015] UKEAT/0351/14/DXA, the appeallant argued that the tribunal, before whom he had appeared as a litigant in person, had erred in law by failing to take a point which he had not raised himself. HHJ Serota found that the point was neither so obvious nor so significant so as to amount to an error of law. However, and perhaps rather concerningly, stated that where a point was ‘an essential ingredient of the claim’ it may be that the tribunal should offer assistance to the litigant in person.
Just to emphasise the increasing numbers of litigants in person we face as opponents, and to remind us of the competing duties and obligations we are subject to when appearing against unrepresented parties, in June the Bar Council, CILEx and Law Society produced ‘Litigants in Person: new guidance for lawyers’. It is well worth a read.
