EAT gives guidance on reasonable adjustments to be made by the Tribunal for claimants with autistic spectrum condition

In Matthew Riley v Direct Line Insurance Group PLC [2023] EAT 118 the EAT has addressed the Tribunal’s duty to make reasonable adjustments, particularly in respect of someone with an autistic spectrum condition and the relevance of the Equal Treatment Handbook. It has also provided guidance in relation to when termination is consensual so as to preclude a dismissal and what is required from a Tribunal by way of reasons when making a determination whether or not to extend time for presenting a discrimination claim.

John Platts-Mills, instructed through Advocate, appeared for the Appellant.

The Claimant (the ‘Appellant’) brought a number of complaints, including discriminatory dismissal and failure to make reasonable adjustments. It was accepted that he was disabled within the meaning of the Equality Act 2010, including by reason of autistic spectrum condition.

There were three grounds of appeal:

• Did the Tribunal make necessary reasonable adjustments? 
• Did the Tribunal make an error of law when finding that the termination of employment was consensual? 
• Did the Tribunal fail to exercise its discretion properly when refusing to extend time?

Ground (1): prior to trial a case management hearing was held to consider adjustments to enable the Appellant to fully to participate. The judge ordered the following: 

Cross examination of the claimant shall be by way of oral and written questions.  Counsel for the respondent shall write down each question to be asked and hand the written copy to the claimant before it is answered. This procedure may be varied or adjusted by the Tribunal.

At the final hearing the Appellant was cross-examined in the normal way over the first two days. He was not provided with written copies of the questions. Having sought evidence from the panel members the EAT determined that there was a discussion about reasonable adjustments before the Appellant’s cross-examination and that he had stated that he did not need to have the questions written down if they were straightforward but that it was agreed that, if he indicated that he did not understand a question or needed to have it written down before answering it, he would say so and counsel for the Respondent would write it down before he answered it.

It is well established that a Tribunal is under a duty to make reasonable adjustments to accommodate a party’s disabilities: see Heal v University of Oxford [2020] ICR 1294. The EAT did not accept that the Tribunal had fallen into error, including by failing to have regard to the Equal Treatment Handbook. Despite the Handbook specifically addressing the difficulties that those with an autistic spectrum condition may have relevant to the circumstances and which the Appellant confirmed in evidence he in fact had. The Handbook relevantly provides as follows:

Many autistic people will have difficulties with the following areas, although this is not a definitive list:

• Literal interpretation of language.

• Unclear, vague and ambiguous instructions.

• Unwritten rules.

• Unexpected and sudden change.

• Hypothetical thinking – specifically the ability to accurately interpret and make a decision based on something that has not yet happened.

…

Difficulties with the legal process

Autistic parties and witnesses, depending on the nature of their autism, may have these difficulties in court:

…

Difficulty answering hypothetical questions. This includes difficulty with a question such as ‘What adjustments would you find helpful?’ An autistic person may be unable to envisage how he or she would feel if certain adjustments were made.

Reasonable adjustments

Give very explicit instructions on all case management directions, including precise details regarding who documents should be sent to and when.

…

Explain in advance what the hearing procedure will be like. Send a written time-table.

Ground (2): the Employment Appeal Tribunal also held that the Tribunal had not erred when finding that the Appellant’s termination was consensual and not a dismissal. Despite failing to set out any of the relevant law, the EAT was satisfied that the Tribunal asked themselves the right questions.  The EAT held that the question whether there was freely given mutual consent to a termination was essentially one of fact and there was ample evidence for the conclusion reached. Despite not referring to his disability in this context the EAT held that the Tribunal must have had it in mind when they rejected his evidence that he did not understand what was being said at meetings.

Ground (3): the Tribunal found that the Respondent had failed to make two reasonable adjustments: they did not provide the Appellant with noise cancelling headphones and there had been no management training in awareness of ‘Asperger’s’. However, the claims were presented out of time, albeit less than three months. Having been left unimpressed by the Appellant’s explanation for the delay – the Tribunal’s reasoning for not granting an extension was limited to the following:     

A change of mind by the claimant about an agreement made by both parties in good faith, was not a ground for a just and equitable extension of time. The other factors of the length of delay and prejudice considered in that context do not persuade the Tribunal that it is appropriate to grant an extension of time.

The EAT rejected the Appellant’s submission that the Tribunal wrongly proceeded on the premise that because they considered his explanation for the delay unsatisfactory time should not be extended and/or that they failed to give adequate reasons for the decision not to extend time. 

John Platts-Mills, instructed through Advocate, appeared for the Appellant.

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