A Tribunal’s assessment of witnesses and the ‘Equal Treatment Bench Book’

Habib v. Dave Whelan Sports Limited (t/a DW Fitness First)

This case involved the Tribunal’s assessment of a witness at the Tribunal hearing.  Tribunals are supposed to have regard to guidance in what is known as the ‘Equal Treatment Bench Book’, and Presidential Guidance on vulnerable witnesses.  

The Guidance outlines that where witnesses have particular problems, such as dyslexia or other mental or physical impairments, the Tribunal needs to take that into account and witnesses need to be reassured that evasiveness and inconsistencies will not be treated as contradictions or untruthfulness in the evidence by that witness.


The Claimant brought various claims before an Employment Tribunal which were rejected following a final merits hearing.  In the Judgment, the Tribunal found that the Claimant’s inability to follow proceedings and understand particular words was inconsistent and that was notably worse when she was cross-examined.  The Tribunal believed that there were elements of performance and exaggeration in her evidence.  It went on to find that this mirrored how she behaved to the employer at the time.

On appeal the EAT found that the Tribunal had not had regard to the proper Guidance.  The Tribunal had some evidence that the Claimant was dyslexic but had not made any reference to the Equal Treatment Bench Book or Guidance.  Furthermore, the Tribunal’s Judgment itself specifically based its decision on the merits of the case on the Claimant’s performance in the witness stand at the Tribunal.

The EAT found that without giving the Claimant an opportunity to present medical or other evidence about the dyslexia, the Tribunal could not fairly conclude whether she was dyslexic or what specific aspects were relevant.  Its failure rendered the decision unfair and the EAT remitted the case back to a new fresh Tribunal for a re-hearing.


Particularly where facts are disputed or a decision on the facts is difficult, the Tribunal will often base its findings on the credibility or otherwise of witnesses.  The case is a reminder that Tribunals need to be very careful in doing so where there are any vulnerabilities in witnesses, which could affect their performance in a Tribunal.  Although this case decided in favour of the Claimant, such considerations should apply equally to any Respondent’s witnesses giving evidence before a Tribunal.