Belfast Telegraph

Northern Ireland tribunal failed to give man with Asperger's fair hearing, says court

By Niall McMullan

In the recent Court of Appeal decision in Northern Ireland of Galo (Patrick) v Bombardier Aerospace UK 2016 NICA 25, the industrial tribunal was held not to have given the appellant, Mr Galo, a fair hearing.

The NICA determined that the tribunal failed to properly take account of his disability and his medical evidence in the circumstances.

Mr Galo suffered from Asperger's Syndrome.

Mr Galo submitted that a number of the acts of the tribunal hearing his case in the first instance, were unlawful. These included:

  •  failure to make reasonable adjustments in relation to his Asperger's Syndrome;
  • unreasonably failing to adjourn the case;
  • proceeding to hear his unfair dismissal claim in his absence and in the face of medical evidence supportive of an adjournment.

During Mr Galo's tribunal case, his former employer conceded that he suffered from Asperger's Syndrome, but the NICA held that no enquiry from the tribunal was made as to the precise nature of the disability, or any potential reasonable adjustments.

The Court of Appeal stated: "… this was, and should have been recognised as such from the outset, a case involving a person under a disability of mental health…as soon as it emerged, enquires should have been made as to whether reasonable adjustments to the process were necessary…"

The tribunal was criticised further in relation to the lack of an attempt to invite doctors to attend the hearing, in order to outline specifically Mr Galo's condition or to obtain a report on his condition.

During the hearing there was clear medical evidence produced which made it apparent that Mr Galo was not in a position to proceed. It was deemed obvious that the tribunal was fully aware of the distress of the appellant.

A report from a clinical psychologist, Dr Wendy Lusty, was produced at the tribunal hearing, and it stated: "… the way in which the appellant thinks, communicates and behaves socially is significantly different in nature to most people. He experiences very high levels of distress in everyday situations and as a result is highly avoidant…"

Mr Galo applied to adjourn the hearing but his application was refused by the tribunal on the grounds of insufficient medical evidence. The NICA disputed this argument, as it was evident from Dr Lusty's report that reasonable adjustments for the Mr Galo were required.

In a condemning decision for the tribunal, the NICA stated: "…the appellant did not benefit from a fair procedural hearing…"

The above case demonstrates the obligation on the industrial tribunal to take into account a claimant's mental impairments and disabilities, and the effect it may have on their ability to conduct proceedings.

Niall McMullan is an Associate Partner in Worthingtons Commercial Solicitors, Belfast, where he specialises in Employment Law and can be contacted on 028 90 434015

Belfast Telegraph