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NICA sends employment case back to Industrial Tribunal due to procedural unfairness for litigant in person
Interesting employment case in Northern Ireland where a litigant in person was denied a Mackenzie friend and also for her two witnesses to remain in attendance throughout the hearing (because the Covid limited seats were taken up by pupil barristers observing the case). Judge found that this amounted to procedural unfairness for the LiP -
[16] The second issue of concern relates to the presiding judge’s rejection of the appellant’s request that her two witnesses remain in the tribunal room upon completion of their evidence. This issue has four identifiable elements. The first is that the witnesses were thereby denied the opportunity to hear the evidence of the respondent’s witness. As a result they did not have the facility of providing the appellant with any comments or, indeed, any form of assistance whatsoever, for example by passing a note to her or conferring with her during a recess. The second, although less significant, element is that the possibility of these witnesses being recalled to give further evidence, in the informal setting of a tribunal hearing where rigid procedural rules do not apply, was effectively extinguished. The third element is that in a context of unavoidable imbalance arising out of the appellant’s self-representing status and the representation of the respondent by solicitor and counsel, accompanied by two others on behalf of the respondent (a witness and staff member of the respondent), a simple measure which could have addressed this to a limited extent was not taken. This court readily infers that the appellant’s sense of isolation, stress and perception of inferiority can only have been exacerbated in consequence.
[17] The fourth and final aspect of this discrete issue relates to the reason proffered by the presiding judge for refusing the appellant’s request. In substance, the convenience of individuals who had nothing whatsoever to do with the parties or the proceedings (even if they had a legitimate interest in observing the hearing) was given priority over the appellant’s interests; and in a manner which was not applied to the respondent’s witnesses or personnel in the same way. Having regard to the considerations of procedural fairness identified in the immediately preceding paragraph, this court considers that this was inappropriate. Its effect was to impinge adversely on the appellant’s right to a fair hearing. We acknowledge that the presiding judge was seeking to assist with the training of pupil barristers, at the request of the Office of the Lord Chief Justice, at a time when barristers’ training through pupillage was seriously impeded. Nonetheless, this interest should not have been permitted to outweigh the interests of the unrepresented party in this case.
[18] Turning to the McKenzie Friend issue, the appellant’s right, again rooted in procedural fairness, was to be given the opportunity to elaborate on the particulars and basis of her application: in short, to outline the facility, or arrangement, which she was proposing and her reasons for doing so. The evidence before us suggests that she was denied this right. A helpful guide to the principles to be applied where a litigant in person seeks the assistance of a McKenzie Friend is found in Practice Note 3/2012 issued by the Lord Chief Justice (although we recognise this would not strictly apply in the tribunal whose decision is under appeal in these proceedings). It indicates that there is a presumption in favour of permitting an unrepresented litigant to have reasonable assistance from a layperson where this facility is sought.