Millin v Capsticks LLP

An employment tribunal may take account of a litigant in person’s inaccurate or irrational closing submissions when assessing credibility. Equality of arms does not confer immunity from the consequences of advancing an unarguable case. The relevant question is whether the proceedings, viewed as a whole, were unfair or placed one party at a substantial disadvantage. An isolated factual error will not justify appellate interference where the tribunal’s reasoning remains sound overall and the error did not materially affect the result.

The claimant, an employed barrister appearing in person, brought numerous sex discrimination and victimisation claims against her former employer and individual respondents. The Employment Tribunal dismissed all claims after a nine-day hearing. On appeal, the claimant challenged several findings of fact and argued that the tribunal had denied her equality of arms by criticising matters advanced in her written submissions, while the respondents were represented by leading counsel. One factual error was conceded, but the central issue was whether the tribunal’s treatment of the claimant’s submissions rendered the trial unfair.

1. Appeal dismissed. The Employment Tribunal had made one error in paragraph 62 of its credibility findings, but the remaining findings were supported by the evidence and were not irrational. Applying the non-pernickety and holistic approach required on an appeal, that isolated error did not undermine the judgment as a whole.
2. A finding that a witness is not credible is a finding of fact, but it must be logically supported and reasoned. Credibility may include unreliability, inconsistency, inaccurate presentation of evidence and unreasonable characterisation of events; it does not require a finding that the witness deliberately lied.
3. The right to equality of arms forms part of the right to a fair trial under Article 6. The question is whether there was an actual, rather than hypothetical, unfairness or substantial disadvantage. The proceedings must be assessed as a whole, and equality of arms cannot be isolated from the overall conduct of the trial.
4. A tribunal may hold against a litigant in person’s credibility that the litigant advances an irrational or inaccurate submission. A litigant in person is not entitled to advance wholly unarguable points without possible adverse consequences. The tribunal was not required to give a separate warning or reminder that the claimant was unrepresented, particularly since she was plainly treated with procedural accommodation by being permitted to rely on written submissions.
5. The claimant did not lose the case because of the three findings potentially connected with her submissions. Most of the approximately 70 issues had been decided by reference to other evidence, contemporaneous documents, statutory requirements or explanations which discharged the respondents’ burden.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s judgment dismissing all the claimant’s discrimination and victimisation claims.
• Employment Tribunal: dismissed the claims after a nine-day hearing and a reserved judgment sent to the parties on 25 July 2011.