New Presidential Guidance on vulnerable parties and witnesses in the Employment Tribunal

The President of the Employment Tribunals has released new Presidential Guidance on vulnerable parties and witnesses in Employment Tribunal proceedings.

The full document is available to view here. What follows is a paraphrased overview of the principal purpose of the Guidance.

The purpose of the Guidance is to focus the attention of all Employment Tribunal judges and members, parties, witnesses and representatives upon the issue of vulnerability.

There is no universal definition of vulnerability in this context. However, the Guidance states that a good test might be whether the person is likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case.

The Tribunal and parties must, amongst other things:

• identify any party or witness who is a vulnerable person at the earliest possible stage of proceedings;

• consider whether a party’s participation in the proceedings is likely to be diminished by reason of vulnerability; and

• consider whether the quality of the evidence given by a party or witness is likely to be diminished by reason of vulnerability.

Should either example apply, the Tribunal needs to consider whether it is necessary to make directions or orders as a result. This can include considering the establishment of “ground rules” before a vulnerable witness gives evidence. This would involve deciding what directions or orders are necessary in relation to the nature and extent of that evidence and includes consideration of the conduct of the representatives and/or the parties in respect of their evidence.

Consideration will also be required as to any necessary support in place for that person. The Guidance states that if the Tribunal and/or parties are in any doubt about this, the person concerned should be asked.

Background to the Guidance is stated at paragraphs 8 to 12. The Guidance itself is stated at paragraphs 13 to 18.

Paragraphs 19 to 21 deal with case management and “ground rules”. To summarise: active case management is an important part of the guidance. The Employment Tribunal Rules of Procedure do not provide for “ground rules”, but this does not prevent them from being considered at any stage of the proceedings or at any appropriate hearing. A particular feature of managing cases involving a vulnerable person will be a readiness to provide extended time for compliance with any step.

Examples of adjustments for vulnerable individuals can be found at paragraphs 22 to 23. These include, and are not limited to:

• provision of an interpreter;

• reporting restrictions;

• waiting rooms;

• avoidance of jargon; and/or

• control of irrelevant or repetitive, oppressive or intimidating questioning.

As with all Presidential Guidance, the Tribunal must have regard to it, but it is not bound by it. The Tribunal maintains its discretion as set out in the Employment Tribunal Rules [1] as to how to use their case management powers and judicial discretion generally.

[1] Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013