Horsfall v Calderdale And Huddersfield NHS Foundation Trust

An Employment Tribunal’s factual findings and reasons should not be disturbed on appeal where it directed itself correctly in law and its conclusions were supported by the evidence. An allegation of apparent bias must be assessed by reference to the proceedings as a whole, applying the informed-observer test. An unguarded judicial comment, including a comment suggesting that evidence may have been exaggerated, will not necessarily establish apparent bias when viewed in its procedural context. A party who makes an informed decision to continue with proceedings may waive an objection to earlier procedural conduct.

The claimant appealed from a 43-page judgment of an Employment Tribunal which dismissed claims of discrimination, whistleblowing and unfair dismissal. The Tribunal found that the claimant had been dismissed for gross misconduct and that the dismissal was unrelated to race discrimination or protected disclosures.

The appeal contained 35 grounds alleging perversity, inadequate reasons and apparent bias. The Employment Appeal Tribunal considered whether the Tribunal’s factual conclusions and reasons were legally sustainable, whether its case management and interventions created apparent bias, and whether the claimant had waived objections by continuing with the hearing.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself on the law, addressed the issues identified in its directions and explained why it accepted or rejected the parties’ evidence. Its findings were firmly grounded in the evidence. The appeal therefore disclosed no proper basis for appellate interference with factual conclusions or reasons.
2. An allegation of perversity requires the overwhelming case identified in Yeboah v Crofton [2002] IRLR 634. Mere disagreement with the Tribunal’s assessment of disputed facts does not satisfy that standard.
3. A Tribunal must not adopt a blanket preference for one party’s evidence. It must explain its credibility conclusions. That obligation was met here. The Tribunal’s interventions and control of the claimant’s evidence were matters of case management and did not demonstrate legal error.
4. The claimant and his representative made an informed decision to continue after the alleged interventions and did not pursue recusal. The objection to those matters was therefore waived. The separate comment about alleged exaggeration was also not returned to during the proceedings.
5. Even without waiver, apparent bias had to be assessed by looking at the proceedings as a whole and asking whether the informed observer, with knowledge of the proceedings, would conclude that the Tribunal was minded to disfavour the claimant, applying Porter v Magill [2002] AC 357 at 494, paras 102–103. The comment was unguarded and unnecessary, but in context it did not meet that test.
6. The appeal was dismissed.

• Employment Tribunal: dismissed the claimant’s discrimination, whistleblowing and unfair dismissal claims. The decision was challenged on 35 grounds.
• Employment Appeal Tribunal: dismissed the appeal and upheld the Tribunal’s decision.