Rohit Sharma v University of Nottingham

This is an appeal by Mr Rohit Sharma against an order made by His Honour Judge Beard in the Employment Appeal Tribunal refusing an application for adjustments to be made to the EAT’s usual procedure to take account of the appellant’s disabilities.

The appellant represented himself at the hearing of the appeal to this court. He did so clearly, courteously and concisely, and in impeccable English.

The respondent, the University of Nottingham, adopted a neutral position on the issue whether such adjustments should be made, as it had done before the EAT, and made no submissions on this issue, regarding it as a matter for the court.

I have concluded that the application to the EAT was based on the appellant’s misunderstanding of the nature of the proceedings before the EAT, so that many of the requests were inappropriate or inapplicable, while others were premature. Judge Beard was therefore right to decline to make the order requested. Rather than the EAT or this court attempting to make provision many months in advance for the course which the appeal hearing before the EAT should take, this should be left to the good sense of the EAT, applying the common law duty of fairness in the light of the circumstances as they exist when the hearing takes place.

The appellant was employed as a Contract and Supplier Manager by the respondent. He brought claims in the Employment Tribunal for unfair dismissal and discrimination on grounds of age, race and disability, breach of contract, unauthorised deduction of wages and (subsequently) victimisation. These claims have a somewhat convoluted history, which is unnecessary to set out in this judgment. The story is told in the judgment of Employment Judge Broughton dated 29^th August 2024 which struck out in their entirety such of the claims as had survived to that point. That is the judgment from which the appeal to the EAT is brought. The striking out was on the basis that the appellant had conducted the proceedings unreasonably and was no longer actively pursuing his claims.

The appellant filed a notice of appeal against the striking out of his claims on 17^th October 2024. By an order dated 3^rd February 2025 the EAT ordered that the appeal be set down for a full hearing with a time estimate (including time for judgment to be delivered) of one day. In her reasons for making this order, Employment Judge Susan Walker KC (Hon) said that it was arguable that there had been procedural unfairness because not all of the appellant’s points had been addressed. The appeal is due to be heard in September 2026, i.e. in about 10 months’ time.

We are not concerned with the merits of the appeal and I say nothing further about them. The only question for us is whether there should be an order made now for various adjustments to be made to the usual procedure of the EAT.

On 10^th February 2025 the appellant made an application for reasonable adjustments to be made to the procedure before the EAT on account of his disabilities. He asked the EAT to determine his application within 14 days.

The appellant explained that he suffered from multiple chronic physical and mental conditions which affected his ability to participate fully in the proceedings. He listed these as follows:

On the basis of these disabilities and impairments, the appellant sought an extensive menu of adjustments, which he grouped as follows:

In support of these requests the appellant relied on a letter from his GP, Dr Rod Addis, dated 1^st July 2024, and a letter from a community health nurse, Charlie Taylor, dated 5^th August 2024. Both of those had initially been provided for the hearing before Employment Judge Broughton, although in the event the appellant chose not to attend that hearing, apparently because his sister from India was staying with him.

The appellant’s application was determined without a hearing, as the appellant had requested. Judge Beard gave the following reasons for refusing to make the orders requested:

‘It appears to me that the request for hearings to be shortened [is] related to the claimant’s disabilities. However, I believe this request is because of a misunderstanding of the way in which appeals are conducted. The format is for the Appellant to present submissions on the four grounds of appeal explaining why he believes the judge was wrong to strike out the claim. This would normally be no more than 1 hour and 30 minutes and usually much shorter, thereafter the respondent would make their submission usually a similar amount of time. After this a judge would normally break to consider judgment and either then deliver judgment orally or if necessary allow the parties to leave after submissions are made and reserve the judgment. That is why these matters are listed for one day. There will be no live evidence or cross-examination in this appeal only documents which form the bundle will be considered and they will relate solely to grounds of appeal. On that basis it would not be in accordance with the overriding objective to split this hearing over two days which would be required by the claimant’s application to be separated by two weeks. Such a step would add to expense, would mean that other appeals could not be heard. Further I am not convinced that this adjustment would alleviate any specific disadvantage for the Appellant.

In terms of speech to text transcription, I do not consider that this is related to the listed disabilities. It appears to me to be connected to the Appellant’s language skills. As such the appointment of an interpreter is more in keeping with the request rather than transcription which would breach the no recording rules.’

The appellant appeals against this refusal of reasonable adjustments. He submits that the EAT failed to discharge its obligations under sections 20 and 21 of the Equality Act 2010; that it mischaracterised his disability-related impairments as mere language issues; that the refusal of reasonable adjustments infringed his right to a fair trial under Article 6 ECHR; that the EAT placed disproportionate emphasis on administrative convenience; and that it failed to follow guidance in the Judicial College Equal Treatment Bench Book 2024.

Section 20 of the Equality Act 2010 defines the duty to make reasonable adjustmentswhere the Act imposes such a duty, but it does not explain who owes that duty. Similarly, section 21 defines a failure to comply with the duty to make reasonable adjustments, but this too does not say who owes that duty. This is dealt with (for present purposes) in section 29 of the Act, which imposes a duty to make reasonable adjustments on persons providing services to the public or a section of the public. The appellant submits that this imposes a legal duty on courts and tribunals to ensure that he is not discriminated against in the provision of judicial services.

That would be so if it were not for Schedule 3, para. 3 of the Act. This states that section 29 does not apply to a judicial function. In ruling on the appellant’s application, Judge Beard was exercising a judicial function. Similarly, when dealing with the appellant’s appeal, the EAT will be exercising a judicial function. It is clear, therefore, that the Equality Act duty does not apply, as was recognised by this court in J v K (EHRC intervening) [2019] EWCA Civ 5, para 33 and by the EAT itself in Heal v University of Oxford [2020] ICR 1294, para 18.

However, this is of no real practical significance, at least in this case, because both this court in J v K and the EAT in Heal accepted that, as a matter of the general law, the exercise of a judicial discretion must take into account all relevant considerations, which include a party’s disability. Similarly, in Rackham v NHS Professionals Ltd [2015] UKEAT/0110/15/LA Mr Justice Langstaff giving the judgment of the EAT said that:

‘32. We do not think it could sensibly be disputed that a Tribunal has a duty as an organ of the state, as a public body, to make reasonable adjustments to accommodate the disabilities of Claimants.’

In this regard, the rights contained in Articles 6 and 14 of the ECHR add nothing of substance to what is already inherent in the common law duty of fairness (J v K, para 36; Heal, para 20; and see also the decision of the Northern Ireland Court of Appeal in Galo v Bombardier Aerospace UK [2016] NICA 25, paras 47-51).

I would therefore accept that a court or tribunal is required to make reasonable adjustments to alleviate substantial disadvantage related to disability in a party's ability to participate in proceedings. But full weight must be given in this formulation to the word ‘reasonable’. The Judicial College Equal Treatment Bench Book identifies some of the adjustments which may be reasonable in particular cases.

It is clear from the appellant’s request for adjustments that he understood that the hearing before the EAT would last for several days, with oral evidence from witnesses including cross examination, and that the hearing would be before a judge and jury. As explained by Judge Beard, that was a fundamental misunderstanding of what will happen. The hearing is set down for one day only, before a specialist tribunal which will have had the opportunity to read in advance and will be very experienced in dealing with litigants in person, including those with imperfect English language skills. The appeal will not be concerned with the merits of the appellant’s substantive employment claims, but only with whether the Employment Tribunal was wrong to strike them out. Submissions will be based on existing documents and in practice are likely to last for no more than three hours, the remainder of the day being set aside for preparation and (if appropriate) delivery of judgment. There will be no oral evidence and the submissions will focus on the material which was before the Employment Tribunal.

In these circumstances I consider in turn the appellant’s various requests.

The request for extended additional time for preparation and responses is unnecessary. As the hearing will not take place until September 2026, there is ample time for the preparation of an appeal bundle and any written submissions. Suitable timetabling directions have already been given by the EAT. The appellant has more than enough time to prepare.

There is no need for adjustments to the hearing format whereby both parties’ submissions are made on a single day. This will take place in person and the parties’ submissions should last no longer than about three hours. There is no need for a gap between hearing days as the hearing will be concluded in one day. I can see nothing about the nature of this particular appeal to suggest that a longer hearing is needed. It will be open to the appellant to request a later start than usual if that makes things easier for him, either because of travel arrangements or because his medication enables him to concentrate better later in the day. But that is not something which should be ordered now and in any event I think it unlikely that the EAT would find it appropriate to start so late as to put at risk the prospect of concluding the hearing within the day.

There is no need to specify now how frequent any breaks should be or what their duration should be. It would be premature to do so. This can be left to the good sense of the members of the EAT conducting the hearing. If the need for breaks means that the parties’ submissions have to take somewhat longer than three hours in all, no doubt this can be accommodated. Equally, it should be possible for access to a quiet waiting area during breaks to be provided for the appellant. The hearing will be before specialist judges, but it is not for the appellant to choose his tribunal or the ethnicity of its members.

There will be no cross examination, which appears to be a major concern of the appellant. If he wishes to do so, he can read from pre-prepared notes while presenting his arguments and he can make whatever notes he wishes during the submissions by the respondent. His wife and son can be present to support him, as they were at the hearing before us. They can provide whatever assistance the appellant may need in expressing himself in English, though we observe that he had no difficulty in expressing himself clearly before us. They can also take notes. If he wishes to have someone else present to support him, including a McKenzie friend, he may do so. No order is needed for any of this to happen. Having heard the appellant make submissions to us, we think it unlikely that an interpreter will be needed, and in any event language difficulties should not be exaggerated. The appellant held a responsible job working as a manager for the respondent, in which he must have expressed himself in fluent English, as he did before us.

At present I see no need for any access to speech to text software and no explanation was given to the EAT of why this was said to be necessary. Nor was there any explanation why screen readers or text magnification tools are required. The EAT’s refusal to make this order therefore cannot be faulted.

It seems to me that the appellant will not need this technology when making his own submissions, and he (or his son) are free to make any notes they wish during the respondent’s submissions. However, if there is a genuine need for the use of such technology, the appellant can request permission to use it when the time comes. I record that he has indicated before us (but did not make this clear in his application to the EAT) that he would be willing to offer an undertaking to use the technology only for the purpose of live transcription, and to delete the recording in the presence of an officer of the EAT once the hearing is concluded; and that he was not asking for this technology to be provided at public expense. It should therefore be possible, if necessary, to overcome any difficulty about recording of the proceedings (see section 9 of the Contempt of Court Act 1981).

For these reasons I consider that the EAT was right to decline to order the adjustments requested by the appellant and I would dismiss the appeal.

I agree.

I also agree.