Judicial Guidance Quietly Removes Written Evidence Option for Disabled Litigants

Access to justice · disability adjustments · ETBB update

The Judicial College has removed a key reasonable adjustment option from guidance used by employment tribunal judges when considering accommodations for disabled litigants.

Focus: Equal Treatment Bench Book
Issue: written evidence and written answers
Format: policy and access-to-justice report

Publication snapshot

The ETBB previously included an option to consider whether a disabled person could give written evidence and answer questions in writing where all other options were unfeasible.
That option was removed in the May 2025 update to the July 2024 ETBB edition, published on the judiciary website on 30 May 2025.
The published update notice did not specifically identify this deletion.
The change raises practical questions about participation for mentally disabled litigants who cannot manage oral hearings.

Core issue: the removal of a previously listed adjustment option may narrow the range of options judges routinely consider, particularly where a litigant’s mental health disability prevents verbal participation in an adversarial hearing.

Contents

The amendment

The Equal Treatment Bench Book (ETBB) is the reference document that guides judicial office holders on ensuring fair treatment across protected characteristics. It provides practical advice on accommodating litigants and witnesses from diverse backgrounds, including those with disabilities.

Prior to May 2025, Chapter 4 of the ETBB, headed Mental Disability, included at paragraph 42 a list of adjustment options for litigants whose mental health conditions affect their ability to participate in proceedings. The final option on this list stated:

Where all other options are unfeasible, considering whether the disabled person can give written evidence and answer questions in writing.

Legal Lens has obtained screenshots of both the pre-amendment and post-amendment versions of this paragraph, with visible judiciary.uk URLs confirming the source and timing of the change. The written evidence option no longer appears in the current version.

The Judicial College’s published update notice for May 2025 does not specifically reference this deletion. The notice highlights changes including “a new section on emotional support dogs in court” and updates following the For Women Scotland Supreme Court judgment, but makes no mention of amendments to the mental disability chapter’s adjustment options.

Reporting point: the issue is not simply that the ETBB was updated. The issue is that a specific written-participation adjustment appears to have been removed without being specifically flagged in the update notice.

Tightening standards

The ETBB amendment has occurred against a backdrop of tribunal decisions that place increasing evidential burdens on disabled claimants seeking adjustments.

In Kaler v Insights ESC Ltd [2024] EAT 195, HHJ Auerbach emphasised that claimants seeking postponements on grounds of ill health must “demonstrate that they are not well enough to attend” and that this “will usually require medical evidence.”

More recently, EAT correspondence in December 2025 has introduced language requiring “objective, professional” medical evidence that goes beyond a claimant’s own assertions — a standard that some practitioners argue may be impossible to meet where treating clinicians are bound by GMC guidance not to provide medico-legal opinions outside formal expert instruction.

Evidence pressure

Disabled litigants may be asked to provide increasingly specific medical evidence about fitness to attend or participate.

Participation pressure

If written participation is no longer listed as an adjustment option, some litigants may face fewer visible routes to meaningful participation.

The legal framework

The Equality Act 2010 imposes a duty on service providers — including tribunals as public bodies — to make reasonable adjustments where a disabled person would otherwise be placed at a substantial disadvantage. This duty is anticipatory and does not require the disabled person to provide medical evidence as a precondition.

However, Schedule 3, Part 1, Paragraph 3 of the Act exempts “judicial functions” from certain discrimination provisions. Case law including L’OL v Secretary of State [2016] confirms this exemption while emphasising that Article 6 ECHR fairness obligations remain in force.

Question raised: whether the removal of a previously recognised adjustment option, combined with escalating evidential requirements, effectively narrows the scope of reasonable adjustments available to mentally disabled litigants in a manner that may engage statutory and human rights protections.

Practical impact

For litigants whose mental health disabilities prevent verbal participation in hearings — including those with conditions such as Complex PTSD, severe anxiety, or trauma-related disorders that are exacerbated by confrontational or stressful environments — the written evidence option represented a potential pathway to meaningful participation in proceedings.

Without this option in the guidance, judges may be less likely to consider written-only adjudication as a viable adjustment, particularly in adversarial employment tribunal proceedings where oral cross-examination is standard practice.

Access-to-justice concern: the combined effect of the ETBB change and stricter medical evidence requirements may create a procedural environment where some disabled claimants face an impossible choice: attend hearings that exacerbate their conditions, or see their claims dismissed or struck out.

A case in point

The practical implications of these developments are illustrated by the ongoing case of Suzanne Fox, a former civil servant from Peterborough who is pursuing multiple discrimination claims against the Ministry of Defence.

Ms Fox, who has Complex PTSD, depression and anxiety, has been seeking written-only adjudication as a reasonable adjustment since November 2024. Her specific need — to give evidence and answer questions in writing — is precisely the adjustment that has been removed from the ETBB.

Despite providing GP evidence confirming that her conditions are “exacerbated by high stress environments, perceived confrontation and any process involving the reliving of trauma,” tribunals have declined to grant her adjustment request, instead directing her to provide further medical evidence.

Live-case caveat: Ms Fox’s case remains ongoing. Legal Lens reports on the ETBB policy change and its general implications; the merits of Ms Fox’s individual claims are matters for the tribunal to determine.

Questions for the judiciary

The ETBB amendment raises several questions that warrant public consideration.

Consultation and data

What consultation, if any, was undertaken before removing the written evidence option from the ETBB?
What data exists on how frequently the written evidence adjustment was utilised prior to its removal?

Legal reconciliation

How do tribunals reconcile the removal of this guidance option with the continuing statutory duty to make reasonable adjustments under the Equality Act 2010?
What alternative pathways to participation remain available for litigants whose mental health disabilities prevent attendance at oral hearings?

Impact evidence

How many disability discrimination claims have been struck out in the past two years on grounds related to fitness-to-attend evidence?

Response sought

Legal Lens has contacted the Ministry of Justice Press Office seeking comment on the rationale for the ETBB amendment and any data on its practical impact. We will update this report with any response received.

Legal disclaimer

Legal Lens publishes policy and access-to-justice commentary for informational purposes only. It is not legal advice and does not create a solicitor–client relationship. While care is taken to ensure accuracy, readers should verify primary sources and obtain independent legal advice before acting. Any reference to an ongoing case is included solely as an illustration of potential practical impact. No view is expressed on the merits, credibility of parties, or likely outcome of any live proceedings, which are matters for the tribunal. Right of reply: editoral@legallens.org.uk.