Anderson v Turning Point Eespro [2019] EWCA Civ 815

 

In 2009 Ms Anderson brought a successful claim in the employment tribunal for discrimination on the grounds of sex (claims on other grounds were dismissed). A hearing was ordered to decide on the remedy but did not start until 2012, with judgment being given in 2015.

There were a number of reasons for delay, including Ms Anderson’s poor mental health, the need for expert psychiatric evidence and Ms Anderson being unrepresented. One hearing was adjourned to allow for a referral to the Bar Pro Bono Unit, through which she was ultimately represented.

Ms Anderson appealed the outcome as she did not think she had received a fair trial. She suggested that insufficient adjustments had been made to take account of her mental health, and in particular claimed that the tribunal ought to have sought evidence on what adjustments were necessary to achieve a level playing field.

Mind intervened in these proceedings to provide information about the difficulties people with mental health experience in court proceedings, particularly when they are unrepresented.

 

The judgment

Anderson came hot on the tail of J v K [2019] EWCA Civ 5. Here the court considered, amongst other things, how courts should approach failures to meet appeal deadlines that were potentially due to poor mental health. The Court of Appeal decided that it must find out whether the appellant was suffering from poor mental health at the time and whether that caused the late filing. If both answers were positive then an extension would likely be the right outcome depending on the delay.

Having seen the J v K judgment, the court confined itself to the particular facts of this case and dismissed the appeal.  It stated that responsibility to propose adjustments or particular measure lays with a party’s representatives rather than the court: ‘the tribunal can expect a party's interests to be looked after by his or her representatives’. Specifically, court concluded that there is no need to have a ‘ground rules hearing’ in every case with a disabled claimant and no need, as a general rule, to obtain specific evidence on potential adjustments.

 

Our thoughts

Litigation is no fun for anyone (save lawyers). It can cause poor mental health and make existing mental health problems worse. Here are a few comments from individuals we shared with the court:

  •  ‘the legal process was worse than the original problem’;
  • ‘going through it without support just made me more unwell’;

  • ‘there needs to be more empathy in the system overall…I can’t believe how little understanding courts have for people in mental health crisis’.

We had hoped that this case would highlight these problems, increasing awareness and improving the proactive steps that courts will take with users who have poor mental health. This issue is far broader than this case, the employment tribunal, and late filing of appeals.

Unfortunately, this was not the outcome we got. We will continue to work to improve the access to justice of people with mental health problems. If you would like to share your experience of whether the courts took into account your mental health problem, please email us at [email protected].

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