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The Court of Appeal recently considered whether or not an ET’s decision not to make an assessment of a Claimant’s capacity to litigate so infected the outcome of the proceedings as to require remission to be reconsidered.


AB was employed by the Royal Bank of Scotland in two of their NatWest branches. On the first day of her employment, she was hit by a car and suffered severe injuries, which resulted in her needing a boot for her foot in order to be able to walk. She was in pain throughout her employment at RBS, and this pain affected her ability to be at work. AB also came to suffer a mental illness during her employment which amounted to a disability.

The ET ruled that AB had been constrictively dismissed, and that dismissal had been unfair, on account of RBS’ breach of obligation to maintain trust and confidence, and to provide a safe working environment. There was also discrimination, first by reason of not making reasonable adjustments, and secondly by comments made directly to AB.

The remedies hearing

At the remedies hearing which followed the determination of the ET, it was contended by AB that she suffered severe depression as a result of the discrimination. The value of the claim was in excess of £10.5 million.

RBS appealed to the EAT, successfully, on the grounds that the ET had wrongly failed to reconsider its decision not to adjourn pending assessment of AB’s capacity to litigate. AB, during the hearing, was unintelligible, and appeared not to even recognise her counsel, Mr Gerard McDermott QC. The ET refused RBS’ application for the case to be stayed pending an assessment for the reason that AB was well represented by a team who knew her closely by this point, and there had been a recent assessment by a doctor which stated AB had the necessary capacity.

The EAT, however, did not remit the case to the ET, despite RBS’ submissions that the process had been invalidated. RBS also contended that the process of assessment might have produced evidence that they could rely upon in support of its substantive case that AB was exaggerating her symptoms.

The Court of Appeal

The appeal was rejected by the Court of Appeal. That decision was made at the end of RBS’ submissions, without the court even wanting to hear from AB’s counsel. The reasons given were that, amongst other things, an assessment would likely have been beneficial to AB, and therefore certainly did not render the decision invalid.

Further, the court pointed out that RBS appeared to be on a fishing expedition, and using the assessment to do so. This centred on the submission that the process of assessment might have produced evidence that they could rely upon in support of its substantive case that AB was exaggerating her symptoms. Stuart-Smith LJ stated that such a tenuous speculation, that a physician conducting a capacity assessment after the inevitable adjournment of the hearing might obtain and rely upon documents which were not already before the Tribunal as a result of proper case management applications and decisions is both misplaced and procedurally misconceived.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/345.html

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