Francis v Cleveland Police Authority

An appeal on a question of law may succeed where an employment tribunal makes an important factual finding unsupported by the evidence or contrary to uncontradicted evidence. The Employment Appeal Tribunal must assess whether the finding materially affected the decision; it must not conduct a rehearing. A tribunal cannot treat an incomplete expert report as establishing the absence of contemporaneous medical evidence where the expert was not asked to address the relevant issue. If that matter is important, it should be checked with the expert or witnesses. An erroneous finding integral to the tribunal’s reasoning may justify remission of the remedy decision.

The claimant had succeeded in an unfair dismissal claim against the respondent and was awarded compensation at a remedies hearing. The Employment Tribunal treated 17 December 2007 as the date after which her losses were no longer attributable to the respondent, concluding that she had left alternative employment by choice rather than because of continuing psychiatric illness.

The claimant appealed, arguing that the tribunal had wrongly assumed that her medical records contained no contemporaneous evidence supporting her account. The appeal concerned whether that assumption, together with other factual errors, materially undermined the tribunal’s assessment of causation and loss.

1. Appeal allowed. The appeal concerned questions of law, and the scope for challenging findings of fact was very limited. Applying Yeboah v Crofton [2002] IRLR 634, an appeal could succeed where a crucial finding was unsupported by evidence or contrary to uncontradicted evidence. The significance of the finding had to be assessed in the context of the decision as a whole.
2. The tribunal had proceeded on the basis that there was no relevant contemporaneous medical reference to the claimant’s condition when she left Barclaycard. That was wrong. The GP records showed visits shortly before and after the resignation, continuing anxiety and depression, active treatment, and that ending the employment was regarded as removing one source of stress.
3. The tribunal had placed on Dr Dunleavy’s report a weight which it could not properly bear. He had not been asked to address the circumstances of the Barclaycard resignation or to set out all the medical records. Before relying on the apparent omission, the tribunal should have checked the position with Dr Dunleavy, the claimant, or both.
4. The erroneous assumption was integral to the tribunal’s reasoning on whether the claimant resigned because of stress and whether she had failed to disclose the Barclaycard employment to the expert. The tribunal also made a material dating error concerning equipment purchased for the claimant’s later business. Those errors could not be treated as insignificant.
5. The remedy issue was remitted to the same tribunal under Sinclair Roche & Temperley v Heard [2004] IRLR 763. The tribunal was directed to reconsider its findings afresh in light of the contemporaneous medical evidence, to entertain further evidence or cross-examination if appropriate, and not to regard its existing remedy findings as binding. It was also to consider the principles governing any compensation cut-off, including mitigation, reasonableness and the burden of proof.

• Employment Appeal Tribunal: the claimant’s appeal against the remedies judgment dated 19 April 2010 was allowed. The remedy issue was remitted to the same tribunal for reconsideration.
• Employment Tribunal: the claimant had previously succeeded on liability in her unfair dismissal claim and was awarded compensation of £6,017.76 at the remedies hearing.
• Employment Appeal Tribunal: the respondent’s earlier appeal against the liability judgment had been dismissed.