EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity – Although not an invariable requirement, where a finding of fact on a point of significance not previously argued for or mentioned by either side occurs to an Employment Tribunal, it is usually desirable for that possible finding to be raised with the parties. That was not done.
Accordingly, in this unlawful discrimination case based on harassment, where conclusions about jurisdiction/time and constructive unfair dismissal depended on it, there was a serious procedural irregularity amounting to an error of law when the Employment Tribunal made a critical finding of fact regarding a disputed allegation of harassment on 6 October 2012 which (a) neither side contended for in their pleadings or witness evidence; (b) neither side put to the other during cross-examination; and (c) was not canvassed with the parties by the Employment Tribunal at the hearing in the sense that no notice was given that the Employment Tribunal was minded to make the finding that it did.
All other findings of fact and conclusions remained and none were challenged. The proportionate course in the circumstances was to remit to the same Employment Tribunal for that issue to be determined afresh.
Simler J
[2014] UKEAT 0155 – 14 – 0711
Bailii
England and Wales
Employment, Discrimination
Updated: 31 October 2021; Ref: scu.539744