Employment tribunals have particular expertise in dealing with matters relating to disability, including mental health conditions, and are generally well-equipped to ensure that litigants with mental health conditions are able to participate in proceedings to the fullest extent possible.

In a small number of cases, however, the tribunal and the parties will be faced with the question of whether an individual has capacity to conduct litigation at all, and how issues of capacity should be approached in the tribunal. Somewhat surprisingly, unlike in the civil courts under CPR 21, there is no bar on an individual who lacks capacity conducting proceedings in the tribunal.

Where the party who may lack capacity is legally represented, the question of capacity will be addressed by his or her solicitor, drawing upon helpful and detailed guidance from the Law Society. Where an individual lacks capacity, his or her solicitor may apply to the tribunal for a litigation friend to be appointed. Such an application was made in Jhuti v Royal Mail Group Ltd UKEAT/0061/17, and it was ultimately confirmed by Simler J (as she then was) that the tribunal could appoint a litigation friend by means of its general case management powers (despite the absence of any express power, and departing from the earlier decision of Johnson v. Edwardian International Hotels Ltd [2008] UKEAT/0588/07).

The position is considerably more difficult where the party who may lack capacity is not legally represented. Where a Respondent forms the view that an unrepresented Claimant may lack capacity to conduct the litigation, what is the appropriate course of action? The guidance given in Jhuti is as follows (paras 37-39):

  • Tribunals should “tread carefully if invited to embark down the road of investigating a party’s mental capacity and should only acede to such an approach where there is clear evidence to support it”.
  • “This is emphatically not an avenue that should be permitted to be used by respondents who, for whatever reason, conclude that a claimant is suffering from mental illness by reason of the allegations or claims he or she brings”.
  • A Respondent can seek to strike out misconceived claims “without resorting to an investigation into capacity”; and
  • Where the issue of capacity is engaged, the provisions of CPR 21 provide relevant guidance (in particular as regards the presumption of capacity, and the appointment of a litigation friend).

This guidance leaves many questions unanswered. In some cases a Respondent will legitimately form the view that the Claimant may lack capacity to conduct litigation. Can it really be that in such a scenario the Respondent and the tribunal are simply to close their eyes to a potential issue of capacity? The guidance in Jhuti would suggest so: it is highly unlikely that a Respondent will have the requisite “clear evidence” of lack of capacity or will be in a position to obtain the same, and without such clear evidence a Respondent raising the issue risks accusations of opportunism. The tribunal is, it appears, essentially required to proceed without considering the issue of capacity if at all possible. In many cases this will, as envisaged by Simler J, result in the Claimant’s claims being struck out without regard to capacity.

In its desire to prevent capacity issues being raised inappropriately or oppressively, the EAT appears to have created a situation in which a particularly vulnerable group of litigants, unrepresented parties who lack capacity, are required to participate fully in litigation and to bear all the risks this involves. This stands in stark contrast to the guidance of the Equal Treatment Bench Book that “courts should always investigate the question of capacity when there is any reason to suspect that it may be absent” (para 42).

At the time of Jhuti, Simler J noted that the Tribunals Procedure Committee would be considering introducing new rules regarding the procedure for dealing with issues of capacity in the tribunals, and urged that this must be addressed “as a matter of urgency” (para 37). Nearly three years on, this remains outstanding.

Although further practical and procedural guidance will be no doubt be warmly welcomed, the fundamental difficulties arising in these cases are likely to endure for as long as it remains the case that there is no bar on a party without capacity conducting litigation in the employment tribunal. Regrettably, for the moment in such cases much will depend on the represented party and the tribunal seeking to act responsibly and sensitively within a rather challenging legal framework.