Chief Constable of Wiltshire Constabulary v Masih

An employment tribunal must identify the issues, make relevant findings of fact, state the applicable law and explain how that law was applied. Reasons must enable the parties and an appellate tribunal to understand and analyse the essential reasoning. A failure to deal with a substantial allegation, particularly where it may overlap with another complaint, is an error of law. The statutory requirements for written reasons are a guide, not a straitjacket, but they support the fundamental duty to give adequate reasons. In a victimisation claim, the appropriate comparator is a person to whom all relevant circumstances apply except that the person has not undertaken the protected act.

Miss Masih brought claims of race discrimination and victimisation against the Chief Constable of Wiltshire Constabulary and Hayes Recruitment Specialists concerning two unsuccessful employment applications. She withdrew the race discrimination allegations, and the Employment Tribunal upheld the victimisation claim against the Authority in relation to the officer position, awarding £2,500 compensation. It dismissed the claim against Hayes.

The Authority appealed, contending that the Tribunal had failed to address the management-position allegation, inadequately explained its findings concerning the officer position and applied an inappropriate comparator. The central issue was whether the Tribunal’s reasons were sufficient to permit the parties and the appellate tribunal to understand how the issues had been decided.

1. Appeal allowed. The Employment Tribunal’s judgment was vitiated by error of law because it did not provide proper and sufficient reasons. The claim against the Authority was remitted for rehearing in its entirety before a freshly constituted Tribunal.
2. A tribunal must explain what the issues were, why and how it resolved them, and the findings of fact and essential conclusions supporting its decision. It need not resolve every minor factual dispute, but it must address important issues between the parties. This principle was explained in English v Emery Reimbold & Strick [2002] EWCA Civ 605.
3. The allegation concerning the management position was a substantial and important issue. The Tribunal neither identified it nor explained why it made no findings on it. The allegation had an obvious potential overlap with the officer-position complaint, because both applications formed part of the claimant’s case that she was unwelcome to return to the Authority. The Tribunal was required to address that question.
4. The Tribunal also failed adequately to explain its inference that there had been communication indicating that the officer-position application was unwelcome. Its reasons did not identify the evidential basis for the inference or adequately reconcile it with the contemporaneous material and the findings concerning Ms Rodriguez.
5. The Tribunal was wrong to criticise the Authority’s counsel for failing to cross-examine Mr Milton about his explanation. If that explanation was challenged as untrue or tainted by victimisation, it was for the claimant’s representative to put that case. The comparator also required reconsideration: it had to be an applicant sharing all relevant circumstances except the protected act, including any relevant information about salary requirements.
6. Regulation 30(6) of the Employment Tribunal Rules 2004 is a guide rather than a straitjacket, as explained in Balfour Beatty and ors v Wilcox and ors [2006] EWCA Civ 1240. It nevertheless assists tribunals in complying with the fundamental duty to give adequate reasons. Hayes’s dismissal remained unaffected because no appeal was brought against it.

• Employment Appeal Tribunal: allowed the Authority’s appeal against the Employment Tribunal’s judgment dated 13 July 2009. The claim against the Authority was remitted in its entirety for rehearing by a fresh Tribunal. The dismissal of the claim against Hayes was unaffected.