Prime Healthcare UK Ltd v Brown

An Employment Tribunal commits a material procedural irregularity if it excludes a witness whose evidence may materially bear on the credibility of competing accounts, a Polkey reduction, or contributory conduct. The fact that the employer did not rely on the witness when deciding to dismiss does not make the evidence irrelevant to the tribunal’s own fact-finding and remedial functions.

In an unfair dismissal case, the burden is neutral. It is an error to require the employer to prove that it has satisfied each element of the Burchell approach or that dismissal was fair. A perversity appeal remains subject to a very high threshold.

The employer appealed against a Liverpool Employment Tribunal decision which upheld the employee’s claims for unfair and wrongful dismissal and awarded compensation. The dismissal followed an allegation that the employee had verbally abused a care-home resident.

At the original hearing, the Tribunal did not permit Mr Higgins, an apparent eyewitness, to give oral evidence. His written evidence was in the bundle. A later reconsideration was ordered to hear him, but proceeded without him when he did not attend and refused to reconsider the decision.

The employer contended that excluding the witness was unfair, that the Tribunal had misdirected itself as to the burden under the Burchell approach, and that aspects of its factual reasoning were perverse. The central issue was whether the exclusion of material evidence and the misdirection required the decision to be remitted.

1. Appeal allowed. The exclusion of Mr Higgins’s oral evidence was unfair and wrong. The Employment Judge gave no adequate explanation for preventing him from giving evidence at the original hearing.

2. The evidence was capable of being highly material. It could assist the Tribunal in evaluating the competing accounts of the incident and the credibility of the other witnesses. It was also relevant to whether a reduction could be made under Polkey v A E Dayton Services [1987] IRLR 503 and to contributory conduct under Employment Rights Act section 123. It did not cease to be relevant because the dismissing manager had not relied upon it.

3. The irregularity was particularly significant because the Tribunal later made findings about what occurred during the incident, while giving Mr Higgins’s written evidence no weight because it had not been tested orally. The absence of the witness at the reconsideration hearing did not justify refusing the employer’s appeal after the earlier exclusion.

4. The Employment Judge also erred by placing the burden on the employer to prove compliance with the Burchell steps and that the dismissal was fair. The burden is neutral. That misdirection supported the conclusion that the proceedings had caused substantial unfairness.

5. The employer did not meet the very high threshold for a perversity challenge, and the remaining allegations about the Employment Judge’s conduct could not be established on the available evidence. Nevertheless, the material procedural impropriety and misdirection required a fresh hearing. The matter was remitted to a fresh Employment Tribunal and was not to be heard by Employment Judge Shotter.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the case for a fresh hearing: [2015] UKEAT 0230_14_0902.
• Employment Tribunal at Liverpool: On 28 December 2012, upheld the employee’s claims for unfair and wrongful dismissal. A reconsideration was later conducted but the Tribunal refused to reconsider its decision.