Case Background

Today’s press coverage of a well known supermarket selling a costume of a blood soaked mad man and labelling it a “mental patient” is a good example of the difficulties businesses face when dealing with mental health. Mental health problems still carry stigma and businesses find it increasingly difficult to know how to manage staff with mental health issues whilst trying to run a viable business.

Contributor Notes

Anyone that represents businesses in the Employment Tribunal knows how many problems are created when a claimant appears in person. A claimant in person usually has a limited understanding as to what is expected of them in the Tribunal and can turn up on the day of the hearing with new witnesses; without witness statements; with new documents; or seeking permission to rely upon that evidence.

Whilst experienced litigators know how to tackle such problems, there are occasions when even the most experienced are pushed to the limit. I have appeared before Employment Tribunals for over 14 years but in 2011, and into 2012, my skills as a litigator were tested to the limit.

The case involved a former employee of a NHS Trust who had been dismissed by reason of capacity. The claimant had spent many years being moved from one job to another in an attempt to accommodate an apparently growing mental health problem. The facts of the case, therefore, spanned several years. The claimant raised allegations covering those years and, as a claimant in person, the metaphorical kitchen sink was thrown in. This approach only increased the cost to the Trust at a time when public funds would have been better served saving lives.

The respondent Trust had to address those issues through witness evidence which meant that there were a significant number of witnesses.

The hearing took place over three weeks; split between 2011 and reconvened in 2012 because the claimant’s health problems caused a long adjournment.

So why was this case different than any other? First, the claimant took over ten minutes to ask each and every question or to make a note of an answer; even if the answer was a simple ‘yes’ or ‘no’.

Second, the claimant became aggressive and made inappropriate comments when questioning witnesses and this caused great upset to those witnesses.

Third, the claimant took constant breaks and made multiple daily unmeritorious applications which meant the hearing had to stop so the Tribunal could hear each and every application. This required my response and then a Tribunal decision. This caused significant delay and further distress to the witnesses.

Why did the Tribunal accommodate such behaviour and why did I not object? The difficulty in this case was that it was almost impossible to differentiate between unacceptable behaviour and behaviour linked to the claimant’s mental health problems. The case highlighted the tight rope all organisations face in trying to manage mental health whilst not tolerating poor behaviour and protecting other staff.

The Tribunal and I were both concerned to ensure the claimant had a fair hearing and so, absent clear evidence as to what was part of the behaviour was linked to the claimant’s mental health and what was just an example of poor behaviour, there was little choice but to accommodate the behaviour. That was extremely difficult as an advocate as I had to make many decisions during the hearing as to matters I would take issue with and those I would not because of the claimant’s mental health. It was a difficult balancing act which caused significant frustration to all involved. I have no doubt that in inexperienced hands the case had potential to go disastrously wrong. Not because the respondents had done anything wrong but because when cases are handled badly by advocates in a hearing setting it can set the case, and the Tribunal, off on the wrong footing and that tends to be the beginning of the end.

After three testing weeks of long pauses, interruptions and aggression the Tribunal finally heard all of the evidence. The result? The Tribunal produced a 50 page judgment unanimously in favour of the Trust.

Was this a victory? Yes and No. No, because the case had cost the Trust; the costs were paid through public funds and the witnesses’ distress was unacceptable. Yes, because the Trust had behaved impeccably and as a result of careful handling the Tribunal vindicated that in the judgment.