Tribunal’s powers where a party’s mental capacity is doubted

Following his dismissal from his post as a hospital porter, Mr Johnson presented an unfair dismissal claim. He alleged that his dismissal had been engineered by the Watch Tower Society of Great Britain (commonly known as Jehovah’s Witnesses), who had secretly video-recorded him and showed these recordings to Tony Blair, the Prime Minister at the time, and that it had falsely imprisoned him in a psychiatric hospital.

During the pre-hearing review, the employer argued that Mr Johnson was plainly suffering from a mental illness and that there were serious doubts as to his capacity to conduct proceedings. The employment judge accepted the employer’s suggestion to invite the Official Solicitor to investigate Mr Johnson’s mental capacity to litigate. However, the Official Solicitor declined the invitation on the ground that his functions as provided for by statute and by direction of the Lord Chancellor do not extend to tribunals.

The EAT upheld Mr Johnson’s appeal and remitted the case to the tribunal for a case management discussion. The EAT held that it is not open to an employment judge to invite the Official Solicitor to investigate a claimant’s capacity. It also rejected the employer’s argument that a tribunal could appoint a litigation friend to conduct the proceedings on behalf of the party in question. Both of these procedures are only available in the ordinary courts.

In providing guidance on how to deal with such situations the EAT stated that in the great majority of cases, the claim will be misconceived and liable to be struck out on that ground, without any need for an investigation of capacity. However, if the claimant does appear to have a viable case on the merits, an employment judge should use his or her case management powers – including the power to strike out – to balance the interests of the parties.

Johnson v Edwardian International Hotels Ltd