MS F HABIB V DAVE WHELAN SPORTS LTD T/T DW FITNESS FIRST EA-2020-00983-LA
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The EAT found that the Tribunal had failed to take into account the Claimant’s dyslexia when making findings that impugned her credibility which rendered the hearing unfair. The matter was remitted for re-hearing.
“ The ET set out that the Claimant displayed an inconsistency in being able to follow proceedings along with an inconsistent inability to understand particular words. The ET stated that there was no medical evidence, but that it had given careful consideration to how the Claimant behaved before it. It came to the conclusion that the difference in the Claimant’s behaviour was so marked that there was an element of performance and exaggeration in the Claimant’s difficulties… it would appear that the ET was relying on the very matters that might arise from the condition as reasons to doubt the Claimant’s evidence. We should emphasise that the ET would be perfectly entitled to come to such a conclusion…however, we would expect that conclusion to be analysed and explained.
 …[A]s uncomfortable as it is, we are drawn to the conclusion that this hearing, by approaching the matter without reference to the ETBB and the Presidential Guidance was unfair. Without, the ET approaching deliberation making that adjustment to its analysis there is such a fundamental failing as to make the hearing unfair.”