The Equal Treatment Bench Book in everyday practice

The Equal Treatment Bench Book is a much-underused resource for all litigators. If you have never read it (or at least referred to it), why not?

Although it is primarily a handbook for judges, the Equal Treatment Bench Book (ETBB) is an immensely useful tool both for anyone appearing as an advocate as well as for those preparing cases. It contains a treasure trove of useful information that can be applied to the various stages of the litigation process. It is especially useful for employment lawyers in a number of contexts.

Litigants in person

Practitioners will all be familiar with the sorts of issues that can arise with litigants in person in Employment Tribunal cases. We have likely all had to deal with problems such as the Claimant failing to produce a witness statement for him or herself, key documents only being disclosed shortly before (or even at) a final hearing, not being able to agree the contents of a bundle, and lengthy and irrelevant cross examination.

Although Respondents (and their representatives) are under a duty to co-operate to achieve the overriding objective, Claimants are often understandably suspicious that well-meaning attempts to make suggestions are somehow an attempt to get one over an unrepresented party.

The ETBB is a great resource to direct litigants in person to. Given it is written by judges, it is truly impartial. It has a chapter on litigants in person (Chapter 1) which includes a section on common procedural misunderstanding in case preparation (running from page 19). This contains good advice on topics like disclosure, the importance of documentary evidence, witness statements, how to prepare bundles and the use of case law. If more claimants read just that chapter, they would avoid many common pitfalls.

The ETBB also contains advice on how best to communicate with litigants in person. Given so many Tribunal claimants struggle with depression and anxiety, much more could be done to adjust correspondence with claimants in line with the guidance contained in the ETBB. I would recommend reading the checklist contained in Chapter 4 paragraph 44 before sending any written correspondence to a claimant suffering from poor mental health.

There are also excellent (and interesting) sections on intercultural communication (in Chapter 8) and naming systems (Appendix C).

Succinct summary of the Equality Act 2010

Another common difficulty for litigants in person is assigning the correct legal labels to their claims (especially discrimination claims). The unfamiliar and complex issues involved can make it next to impossible to agree a list of issues with an unrepresented claimant.

The ETBB contains (at Appendix A) a 9 page summary of the Equality Act 2010 which includes succinct descriptions of key concepts like the various types of discrimination as well as more complex ideas like “PCP”s. When trying to finalise a list of issues or requesting further particulars from a claimant, it may be a good idea to direct a litigant in person to this Appendix. They stand a better chance of understanding the key concepts if they have this to refer to rather than simply relying on a judge trying to explain the same concepts hurriedly at a Preliminary hearing. It may save a huge amount of time further down the line.

Accommodating disability

At first glance the ETBB can appear an intimidating document at 571 pages long. However, much of it is taken up with detailed appendices that can be really useful to refer to on a case by case basis. For example, Appendix B is a 77 page glossary of different disabilities together with a list of reasonable adjustments that may need to be considered for each before a hearing. As well as being as an invaluable resource to ensure that relevant adjustments are considered in advance of a hearing, this can also be a useful reference document to consider when drafting the response to a claim for failure to make reasonable adjustment or discrimination arising from disability. It could also be useful when advising employers on the types of issues that might need to be addressed when considering the need to make reasonable adjustments in the workplace.

As well as Appendix B, there are longer chapters on physical disability (Chapter 3) and mental disability (Chapter 4) generally. These discuss in more detail possible adjustments that may be required both at the hearing and for case preparation more generally.

The ETBB also contains sections on acceptable terminology in a number of contexts (disability, sexual orientation, race, trans people) which are useful both in and out of court (for example in corresponding with a disabled claimant or witness) to avoid unintentionally causing offence. Again, it is a helpful document to refer HR clients to for exactly the same reason.

Mental capacity and intermediaries

As it is comes up relatively rarely in practice, questions of mental capacity can be very intimidating to deal with. The ETBB includes (Chapter 5) an excellent summary of both the fundamental principles as well as the procedural rules in civil and family proceedings that can be instructive when considering such cases in the Employment Tribunal. It is an excellent starting point when considering this issue.

The ETBB also contains a section on when and how to instruct intermediaries in civil and tribunal cases (Chapter 2) to ensure that parties and witnesses can give their best evidence. Again, this is a good starting point if considering this as an option.

Sexual harassment and serious sexual violence

Although rare, cases involving serious sexual violence do find their way into the Employment Tribunal. There are a whole series of considerations that apply to such cases which employment practitioners tend not to be too familiar with. Anyone dealing with such a case may want to consider (as well as more general adjustments – such as the use of screens when giving evidence or the possible need to list a ground rules hearing) the sections in the ETBB on rape myths (Chapter 6 Gender – sexual offences).

Conclusion

The ETBB can be a very useful resource. However, a surprising number of practitioners do not even know it exists. Even if you do not decide to read it all, it is worth understanding what it covers and how it is structured, so you can refer to it as and when needed.