Employment Tribunal Adjustments for Vulnerable Litigants

The adjustment paradox

A litigant tells the Employment Tribunal that they are not coping. They are sleeping badly, cannot concentrate on the documents and become distressed whenever correspondence arrives. A hearing is approaching and an order remains outstanding.

The difficulty may be genuine and serious. The Tribunal must still decide what that information means for the proceedings. Does the person need more time, shorter hearing days, regular breaks or one question at a time? Would remote participation or a screen address the problem? Is a postponement necessary, or could a less disruptive measure allow the hearing to continue?

“I am not coping” describes an experience. It does not necessarily identify the task that has become difficult, the effect on participation or the measure that may help.

That is the adjustment paradox. A vulnerable litigant may need procedural assistance in order to explain why procedural assistance is needed.

The framework already recognises vulnerability

The Employment Tribunal Procedure Rules 2024 require cases to be dealt with fairly and justly. The overriding objective includes equal footing, proportionality, procedural flexibility and avoiding unnecessary formality and delay.

For Employment Tribunals in England and Wales, the continuing Presidential Guidance on Vulnerable Parties and Witnesses goes further. It recognises that vulnerability may arise from mental or physical disability, communication difficulty, fear, distress, the presence of another participant or the adversarial process itself. It may be temporary, situational or limited to one stage of the case.

The Guidance identifies two central questions: is the person's participation likely to be diminished, and is the quality of their evidence likely to be diminished? Where either concern may arise, the Tribunal and the parties should consider whether directions or procedural measures are needed.

The issue may emerge from the ET1, ET3, medical material, correspondence, an application, case management or the person's presentation at a hearing. The Guidance also recognises that measures may be considered on the Tribunal's own initiative or even where the issue has been raised informally rather than through a technically perfect application.

Diagnosis is not the procedural question

A diagnosis may explain why someone is struggling. It does not, by itself, identify which Tribunal task is affected or which measure would enable participation.

Two people with the same diagnosis may have different needs. One may struggle with rapid oral questioning but manage written work. Another may be able to deal with correspondence in short periods but be unable to sustain a full hearing day. A third may participate remotely but become unable to answer coherently in the physical presence of a particular witness.

The procedural question is narrower than whether the person is unwell. It is how the condition, treatment or communication difficulty affects the task they are required to perform.

Useful information therefore connects three things: the condition or difficulty, its relevant functional effect, and the particular procedural demand. Without that link, the Tribunal may understand that the person is distressed but remain unable to decide what should change.

Representation as procedural translation

Professional representation provides more than knowledge of employment law. It can convert a broad expression of distress into a practical procedural request.

A representative can ask whether the difficulty concerns sustained concentration, memory, reading, direct interaction with a former manager, the pace of questioning, the organisation of documents or the management of deadlines. They can then connect the answer to a proportionate measure and obtain evidence directed to the right question.

A general statement that the client cannot cope may become a request for shorter hearing days, scheduled breaks, one question at a time or an extension tied to a specific task. Fear of attendance may lead to consideration of remote participation, a screen, separate waiting arrangements or another questioning method.

This translation function is easily overlooked because it is absorbed into ordinary representation. A litigant in person may have to recognise that their difficulty is procedurally relevant, analyse its functional effect, identify a possible measure and explain the fairness implications while the same difficulty is already affecting concentration, organisation or decision-making.

Assistance without advocacy

A more responsive process must preserve judicial impartiality. The Tribunal may explain procedure, identify that participation requires attention, ask clarifying questions, direct relevant evidence and explore options with both parties. It may help an unrepresented person understand what information is missing and what choices are available.

It cannot devise the claimant's substantive case, repair missing evidence, suggest how to prove disputed allegations or prevent the respondent from challenging the evidence.

The distinction is between facilitating participation and advancing the merits. A person may experience serious mental-health difficulties while retaining capacity and autonomy. Vulnerability does not automatically require postponement and should not be treated as incapacity.

The current Presidential Guidance reflects this balanced role. It encourages early active case management, ground rules and practical measures while making each decision a matter of judicial discretion in the circumstances. The Guidance itself cites J v K, Anderson v Turning Point Eespro and Duffy v George in its discussion of ground rules and hearing arrangements.

Why medical evidence may miss the question

A litigant may believe that a fit note signing them off work proves that they cannot comply with an order or participate in a hearing. It may provide relevant evidence that they are unwell. Fitness for employment and ability to perform a particular litigation task are not, however, identical questions.

A fit note may say that someone is not fit for work because of anxiety or stress. It may say little about whether they can prepare a statement in stages, attend remotely, read a short direction, give evidence with breaks or participate on shorter days.

The difficulty may be that the clinician has answered the question asked. The litigant may not have known which procedural question to ask.

Where medical evidence is needed, a focused request may ask about functional activities: concentration, reading, oral processing, stamina, direct confrontation, remote participation, the likely duration of the difficulty and whether a proposed measure may assist. The clinician supplies clinical information; the Tribunal decides the procedural question.

Evidence should match the measure

There is no rigid three-tier legal test governing the evidence required for an adjustment. A practical principle nevertheless follows from proportional case management: the greater the proposed effect on the hearing, timetable or other party, the clearer and more task-specific the justification is likely to need to be.

A modest request for regular breaks, simpler questions or additional reading time may sometimes be addressed through a clear explanation and surrounding material. A request for substantially shorter hearing days, altered questioning or remote participation at a final hearing may require fuller evidence. A request to vacate a final hearing, excuse serious default or obtain repeated postponements is likely to require close attention to the relevant period, prognosis and less disruptive alternatives.

This is an evidence-sensitivity model, not a fixed rule. Its purpose is to explain why broad diagnostic information may provide sufficient context for one measure but be inadequate for another with wider procedural consequences.

When vulnerability is identified too late

Early identification allows vulnerability to be managed as a participation issue. Late identification may cause the same difficulty to be assessed as procedural default.

A person struggling with concentration, communication or organisation may misunderstand an order, miss a deadline, send confused correspondence or fail to attend. Until the underlying barrier is recognised, the conduct may appear careless, obstructive or unreasonable.

Mental ill health is not an automatic excuse. The person will ordinarily need to connect the condition to the procedural act and relevant period. The analysis should nevertheless remain proportionate. The Tribunal may need to consider whether the conduct was deliberate, whether a fair hearing remains possible and whether clearer directions, staged compliance, an extension or another measure could secure progress.

Adjustment is not procedural immunity. Orders still matter, evidence must still be produced and persistent non-compliance may justify serious consequences. The question is whether the response addresses the actual barrier before moving to the most severe sanction.

Fairness remains bilateral

Fairness to the respondent is part of the analysis from the beginning. A respondent is entitled to understand the case, challenge disputed evidence, make representations about proposed measures and obtain a hearing within a reasonable period. Witnesses may leave, memories may fade and costs may increase while a case is delayed.

The Tribunal must therefore consider whether a proposed arrangement reduces the claimant's barrier without creating another form of unfairness. A screen may enable evidence to be given while preserving questioning. Remote participation may address a particular difficulty while maintaining a live hearing. Tribunal-led or written questions may sometimes reduce direct confrontation, provided the respondent retains a meaningful opportunity to put its case.

The purpose is not to remove challenge. It is to ensure that the method of challenge tests the evidence rather than merely the person's ability to withstand an avoidable procedural barrier.

From labels to procedural information

The legal framework is clearer than the operational evidence. Reliable data on the frequency, type and outcome of Employment Tribunal participation requests is limited. It would therefore be unsafe to claim that vulnerable litigants routinely fail to obtain adjustments or that represented parties consistently identify vulnerability earlier.

The absence of measured prevalence does not remove the design question. The adjustment paradox is a credible access-to-justice inference: a person whose impairment affects organisation or communication may struggle to provide the organised explanation required to obtain help.

The answer is not automatic accommodation. It is better procedural translation.

A functional participation form could ask which task is difficult, what happens when the person attempts it, when the difficulty arises, what measure may help and what supporting material exists. Public guidance could distinguish a request for breaks or simpler questions from an application to vacate a final hearing, explaining why the information required may differ.

Standard questions could help clinicians address the functional issue actually before the Tribunal. An early participation review could identify barriers before major directions or hearing arrangements are fixed. Procedural navigators could assist with forms, evidence requirements and signposting without advising on the merits or coaching testimony.