PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
In the first appeal (UKEAT/0167/15/LA), the Appellant, the NHS Trust Development Authority (‘TDA’), complained that the Employment Tribunal (‘ET’) had reached conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that there must have been a telephone conversation between an employee of the TDA and an employee of the Third Respondent, IRG Advisors LLP t/a Odgers Berndtson (‘Odgers’), without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In the second appeal (UKEAT/0276/15/LA) the Appellant, North Cumbria University NHS Trust (‘the Trust’), complained in similar terms that the ET had arrived at conclusions which were not supported by the evidence or were arrived at by inferential conclusions, which could not be drawn from the evidence, or were findings no reasonable Tribunal properly directing itself on the evidence could have reached. Alternatively, it was submitted that there had been a serious procedural irregularity amounting to an error of law by the ET reaching the conclusion that the Trust, through an agent, had victimised the Claimant without giving the witnesses a proper opportunity to comment on that proposition or inviting the parties to make submissions about it.
In order for a serious procedural irregularity to amount to an error of law it must be established that it has led to an unjust or unfair result. There may be a variety of categories of serious procedural irregularity. In the context of this area of law cases such as Hereford and Worcester County Council v Neale [1986] IRLR 168 and Secretary of State for Justice v Lown [2016] IRLR 22 have been concerned with procedural irregularity and on at least one occasion that has been coupled with inadequacy of reasoning (see paragraphs 58 to 62 of the judgment of Underhill LJ in The Co-operative Group Ltd v Baddeley [2014] EWCA Civ 658). But the existence of an inflexible rule of practice, apparently recognised in other common law jurisdictions as the rule in Browne v Dunn (see the House of Lords judgment in Browne v Dunn [1893] 6 R 67), is both doubtful and undesirable (Markem Corporation v Zipher Ltd [2005] EWCA Civ 267, Allied Pastoral Holdings v Federal Commissioner of Taxation [1983] 44 ALR. 607, Deepak Fertilisers and Petrochemical Corporation v Davy McKee (London) Ltd [2002] EWCA Civ 1396 and paragraphs 12-12 and 12-35 in Chapter 12 of the 18th edition of Phipson on Evidence considered). Any such concept comprises not only a rule of practice but also a rule of evidence and a rule of professional etiquette. In order to amount to an error of law, however, the irregularity must be that of the Tribunal and the extent to which a procedural irregularity will be a serious procedural irregularity resulting in injustice and unfairness such as to amount to an error of law depends on the circumstances of each case and not on the existence of an overarching rule of practice.
Removing an applicant from further consideration during an appointment process (in this case from a preliminary interview stage) can amount to a detriment within the meaning of section 27(1) Equality Act 2010 (‘EqA’) (Shamoon v Chief Constable of the RUC [2003] UKHL 11, [2003] ICR 337 applied) and the Trust’s appeal could not succeed on that basis.
Section 111(7) EqA does not have the effect of excluding corporate bodies from the scope of section 111 and TDA’s appeal could not succeed on that basis. Both sections 111 and 112 EqA considered.
TDA’s appeal succeeded on the ground that the ET had erred in law by reaching a conclusion not supported by the evidence. The ET had reached an inferential conclusion that an employee of TDA had a conversation with an employee of Odgers but the findings of fact could not support the drawing of that inference. In the context of the case it was also a serious procedural irregularity for the ET to have reached that conclusion without indicating to the parties (and the witnesses) that was under consideration and giving an opportunity for the matter to be dealt with both evidentially and in submissions. Having considered paragraph 21 of the judgment of Laws LJ in Lincoln College v Jafri [2014] EWCA Civ 449, [2014] ICR 920 it was concluded that this was an exceptional case in which this Tribunal could conclude, because there was no primary evidence to support the inferential conclusion, that such an inference could never be drawn and therefore the matter was not remitted.
The Trust’s appeal succeeded on the grounds of both inadequacy of reasoning and, in the circumstances of the case, serious procedural irregularity. The appeal was disposed of by a remission to the ET for the evidence of a witness to be re-heard and the judgment reconsidered after that evidence had been given.
The cross-appeal related to the conclusion of the ET that, absent victimisation, the Claimant had a 50% chance of proceeding to the next stage of the appointment process but no chance of either being short listed or appointed. The Court of Appeal’s judgment in Chagger v Abbey National plc and another [2009] EWCA Civ 1202, [2010] IRLR 47 did not mean that as well as eliminating the victimisation from consideration, the prior discrimination constituting the protected act upon which the victimisation was based should also be eliminated from consideration. That would produce an artificial perspective. The cross-appeal was essentially an argument that the conclusion was perverse. It was not; on the contrary it was supported by the evidence and the cross-appeal must fail.
Judges:
Hand QC HHJ
Citations:
[2017] UKEAT 0276 – 15 – 1707
Links:
Jurisdiction:
England and Wales
Employment
Updated: 27 March 2022; Ref: scu.590534
