Appeal judge orders re-hearing of employment claim against council where most of written reasons of tribunal were copied from evidence or submissions of local authority

The Employment Appeal Tribunal has ordered a re-hearing of claims by an ex-employee against a local authority, after finding that most of the Employment Tribunal’s written reasons were copied from the council's witness evidence or written submissions.

The appeal in Kemsley v Cambridgeshire County Council concerned a claim brought by a data inputter in the local authority's archives services.

The summary of Mr Justice Bourne's ruling said: “Where most of an Employment Tribunal’s written reasons were copied from the Respondent’s witness evidence or written submissions and there was no reference to the contents of the Appellant’s witness evidence or written submissions, on the facts of this case the EAT was unable to conclude that there had been a proper judicial evaluation of the issues.

“A finding that none of a large number of incidents amounted to a detriment for the purpose of a victimisation claim under section 27 of the Equality Act 2010 was insufficiently reasoned, not least where the Respondent had conceded that several of the incidents did amount to detriments.

“The Employment Tribunal also failed to state its ruling on (1) a contention by the Appellant that a manager of the Respondent had victimised her by dismissing her under the influence of “tainted information” from another employee, (2) a contention that an offensive email amounted to harassment on grounds of sex, where the alleged harasser on one or more other occasions referred to the Appellant’s sex in a way she found derogatory (having also erred by finding that she did not see the email, when there was uncontested evidence that she did) and (3) contentions of fact by the Appellant which were relevant to her claim of age discrimination.”

Mr Justice Bourne said the claims must be remitted for re-hearing by a differently constituted Employment Tribunal.

The judge said: “After a 6-day hearing below, that is a deeply regrettable state of affairs. As my judgment will have made clear, the decision on this appeal does not mean that any part of the claim will necessarily succeed and, win or lose, both parties will suffer considerable prejudice from having it tried twice instead of once.

“Given the clear guidance in repeated cases against courts and tribunals simply repeating one side’s evidence or submissions without attribution and without reference to the other side’s case, it is surprising and disappointing that that error has occurred in this case. And both parties must have been especially disappointed to receive a judgment containing so little of the ET’s own reasoning after the 6-month delay in the provision of the written reasons for the decision.”