In cases where the mental capacity of a party is doubted, employment tribunals must use their general case management powers in relation to the conduct of the proceedings and the merits of the claim rather than investigate a party’s mental capacity.
The claimant, Mr Johnson, was employed as kitchen porter at one of the respondent’s, Edwardian International, hotels. Following his dismissal, he claimed for unfair dismissal and alleged that it had been instigated by the Watch Tower Society of Great Britain (WTSGB) – commonly known as Jehovah’s Witnesses.
At a pre-hearing review, the respondent alleged that the claimant was “delusional”, that he was plainly suffering from mental illness of some kind and that there were serious doubts about his capacity to bring and prosecute legal proceedings. It relied on references in the claim form to the WTS ordering secret recordings, coming into the hotel to turn staff against him, spreading rumours about his sexuality, preventing witnesses from assisting him, installing secret cameras in changing rooms and in his room, falsely imprisoning him in a psychiatric hospital and showing the tapes to Tony Blair.
The tribunal chairman referred the matter to the Official Solicitor to investigate the issue of the claimant’s mental capacity and stayed the case pending investigation. However, the Official Solicitor said his powers of investigation in such matters did not extend to tribunals.
The Employment Appeal Tribunal (EAT) allowed the appeal but concluded that tribunals should be very wary of trying to investigate a party’s mental capacity, based on the following key points:
- The tribunal rules contain no mechanism equivalent to that available in the ordinary courts for the tribunal to appoint a litigation friend to conduct the proceedings on behalf of the party in question. Accordingly, if the tribunal concluded that a claimant lacked the capacity to continue his claim, it would leave him in an unsatisfactory position where he had no means for it to be advanced by someone else on his behalf.
- In High Court proceedings there is a presumption of capacity and a similar presumption should apply in the tribunal.
The EAT said the correct way for tribunals to respond when faced with a party with suspect mental capacity should be to use their case management powers to manage any difficulties that arose. If, for example, a case was fundamentally misconceived or a party’s conduct was such that it caused serious unfairness or makes the case truly unmanageable, the power already existed for the tribunal to take steps to manage this, including the ultimate sanction of striking out.
The EAT and respondent accepted that a referral to the Official Solicitor to investigate the mental capacity of a claimant was not an option available to the tribunal and, although the EAT may have this option it would not be right to do so since this would, it believed, be the equivalent obtaining assistance ‘by the back door’ for the tribunal.
- The tribunal’s case management powers are the only means by which a party with questionable mental capacity may be dealt with, but they do not extend to a power to investigate such capacity or the appointment of a litigation friend.
- Reliable evidence such as medical reports that confirm a party’s lack of mental capacity can still result in that party being dismissed from the proceedings, but this will be both exceptional and very difficult in the absence of any power of the tribunal to order any investigation.
Kate Williams, professional support lawyer, Addleshaw Goddard