In the case of Habib v Dave Whelan Sports Ltd T/A DW Fitness First an appeal against the dismissal of the Claimant’s claims of direct discrimination because of age, sex and religion or belief, harassment related to age and sex, less favourable treatment as a part time worker and victimisation has been allowed.
The Claimant, who is dyslexic, argued for three adjustments to be made at the hearing that were refused by the ET which, in addition drew conclusions based on the Claimant’s “performance” in giving evidence. The ET went on to dismiss all the Claimant’s claims. She appealed on 8 grounds, the main one being that the ET failed to provide the Claimant, a disabled litigant, with a fair hearing: the sub-paragraphs of that ground asserted that there was a failure to refer to and apply the Presidential Guidance on vulnerable witnesses and the relevant sections of the Equal Treatment Bench Book (ETBB). In addition, it was contended that the ET failed to make three specific adjustments which would have enabled her to fully participate in the hearing.
The EAT allowed the appeal. The ET drew conclusions about the Claimant’s credibility which were related to factors which could arise from dyslexia. This was done without apparent reference to the ETTB and/or the Presidential Guidance on vulnerable witnesses. The ET’s deliberation on credibility did not show an analysis which took account of guidance and why it had reached conclusions despite the guidance. In addition, the Claimant was never made aware of the concerns of the ET as to the extent of the effects of dyslexia until the reserved judgment was delivered.
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