Whilst the Employment Tribunal was always designed to welcome those that acted in person, there are a number of rules and a set procedure to follow. Some solicitors struggle with this and other forms of reps, so it is perhaps no surprise that litigants in person also struggle. The new rules are of course designed to ease the burden and simplify things.
However, earlier this year, I acted for an employer defending a disability discrimination case. The employee had a rep (not a solicitor) but they seemed incapable of following the ET procedure in place at the time. In particular, disability was in dispute and they failed to particularise what the claim was actually for under the Equality Act and failed to produce any medical evidence. The pre-hearing review was postponed and the Tribunal gave some guidance as to what the medical report should contain.
It seems I am not alone as the recent EAT case of Singapore Airlines v Cassado-Guijarro also found similar issues and said that these matters should be determined at the case management hearing. (Now of course this will be the preliminary hearing.) In this case, the case management order made was for the disclosure of medical records and statements but nothing more. The EAT expressed a view particularly where there is a litigant in person that it would be helpful for the case management order to go further. The EAT said that the case management hearing should consider, and the order actually stipulate, what is to be provided by way of medical evidence for the final hearing, as well as when and how it is to be obtained. Thought should be given as to whether a joint expert report is required. Some Tribunals already issue guidance on what a medical report should contain but the EAT suggests that it would be more helpful to spell it all out in the case management orders as a matter of course.