First Intermediary Appointment by Employment Tribunal

RK v Imperial College Healthcare Trust [2210766/2015]

For the first time, the Employment Tribunal ("ET") has appointed and funded an intermediary for a vulnerable claimant, to enable them to follow proceedings and to give evidence.

Intermediaries are communication specialists who aim to give a voice to the many voiceless vulnerable people who may have poor mental health, learning disabilities, physical disabilities such as stroke, cerebral palsy, neurodevelopmental disorders, Autism, ADHD, vulnerable elderly and any child under 18 years old. Effective participation by all is the key aim.

The vulnerable claimant was amongst the first to benefit from the ET's newfound power to appoint a litigation friend for parties lacking capacity [Jhuti v Royal Mail Group Ltd [2018] ICR 1077 (EAT)], thereby escaping the Respondent's strike out application. However she then faced communication barriers to taking meaningful part in proceedings, and the significant financial hurdle to paying privately for an intermediary to overcome those communication difficulties.

Citing (i) the ET's duty to make reasonable adjustments under the Equality Act 2010; (ii) its public sector equality duty under the same; (iii) the ET's duty to act compatibly with art 6 ECHR read in conjunction with art 14 ECHR (the right to enjoy ECHR rights without discrimination on various grounds, including: 'other status', which captures incapacitous parties); and (iv) the principles enunciated in R (oao UNISON) v Lord Chancellor [2017] UKSC 51, the claimant argued that the ET could not require incapacitous claimants to have to overcome an additional financial obstacle in order to bring and pursue their claims.

Following this ground-breaking case, a pathway for the appointment of intermediaries is currently being set up for their involvement in ETs. This will address the process from initial communication assessment to the final judgement.

Following UNISON and Jhuti, the ET's intermediary appointment continues a recent trend in employment law of widening access to justice.

Having overcome the litigation friend and registered intermediary and financial obstacles to pursuing the claim, the claimant succeeded in establishing disability discrimination (s 15 EA 2010) and unfair dismissal after 5 day trial.

Tom Tabori appeared for the claimant.

For more information on the role of the Intermediary and how to find one, please visit the charity Intermediaries for Justice.