Gainford Care Homes Ltd v Kennedy

An Employment Tribunal may exceptionally reach a factual conclusion which neither party has advanced. Where that possibility concerns a significant and disputed issue, however, the Tribunal should ordinarily identify it to the parties and permit comment, submissions or further evidence.

Failure to afford that opportunity is a serious procedural irregularity where the uncanvassed finding may be factually untenable and is material to jurisdiction or liability. The resulting finding, and conclusions dependent upon it, must be set aside. Remittal to the same Tribunal may nevertheless be proportionate where its other findings are unchallenged and it can reconsider the limited issue with an open mind.

The Claimant resigned after alleging harassment related to her sexual orientation. The Employment Tribunal upheld her harassment and constructive unfair dismissal claims.

A disputed incident on 6 October 2012 was critical both to whether the harassment complaint was in time and to the constructive dismissal conclusions. Neither party had contended that the alleged harasser entered the care home twice that day. The Tribunal nevertheless made that finding and held that harassment occurred during the first visit.

The employer appealed on the ground that this uncanvassed compromise finding breached natural justice. The central issue was whether the Tribunal could make that critical finding without giving either party notice and an opportunity to address it.

1. Appeal allowed in part. The Tribunal committed a serious procedural error by making the critical finding that the alleged harasser entered the home twice on 6 October and acted as alleged during the first visit. That was a factual basis advanced by neither party, and the Tribunal gave no notice that it was considering it.

2. A Tribunal may reach a factual conclusion inconsistent with both parties’ accounts. As explained in B v A and C [2008] UKEAT 0505/07/JOJ, that will usually be exceptional. Where a new finding has significant consequences, good practice generally requires the Tribunal to raise it and allow the parties to comment, argue, or adduce evidence. The requirement is not invariable: it may be unnecessary where the finding has little or no legal consequence and cannot cause injustice.

3. Here, the uncanvassed finding was potentially critical and may have been physically impossible or highly unlikely in light of the evidence about travel, the alleged harasser’s movements, and the evidence of other witnesses. The employer was deprived of the opportunity to challenge that possibility with evidence and submissions. The irregularity therefore vitiated the findings concerning 6 October.

4. The findings that harassment occurred on 6 October, that the complaint was in time, that the employer breached its duty to protect the Claimant on that date, and that she was constructively and unfairly dismissed were quashed. The other factual findings remained intact.

5. Applying the remittal guidance in Sinclair Roche Temperley v Heard and Anr [2004] IRLR 763, remission to the same Tribunal was proportionate. Its unchallenged earlier findings were carefully made, and it could determine the confined issue afresh with an open mind. A case-management hearing could identify any further evidence and submissions required.

• Employment Appeal Tribunal: Appeal allowed to a limited extent and remitted to the same Employment Tribunal for reconsideration of the events of 6 October 2012: [2014] UKEAT 0155_14_0711.
• Employment Tribunal: In reasons sent to the parties on 10 September 2013, upheld claims of unlawful harassment and constructive unfair dismissal. The findings dependent on the events of 6 October 2012 were set aside on appeal.