Nawaz v BG Consulting Group Ltd

A tribunal’s extensive use of one party’s written submissions is bad practice and may create an appearance of unfairness. It does not, however, automatically require an appeal to be allowed. The appellate tribunal must examine the judgment, evidence and submissions to decide whether the tribunal independently evaluated the essential issues, sufficiently engaged with the losing party’s case, and caused an injustice.

A judge need not expressly address every submission. Reasons are adequate where the expressed findings make clear why the material arguments were rejected. An error in reasoning on a limitation issue will not justify intervention where an independent basis supports that conclusion and all claims were also rejected on their merits.

The Claimant, a client relationship manager responsible for developing business in the Middle East, brought claims of race discrimination, harassment and victimisation against his employer. The Employment Tribunal rejected the claims on their merits and held that it lacked jurisdiction over complaints arising before 22 October 2014.

On appeal, the Claimant contended that the Tribunal had failed to conduct a fair and independent evaluation because parts of its 211-paragraph judgment reproduced the Respondent’s written submissions. The appeal was permitted to proceed on that issue following a Rule 3(10) hearing. The central question was whether the copying, and any failure expressly to address the Claimant’s submissions, had caused an injustice requiring the decision to be set aside.

1. Appeal dismissed. Although the Employment Tribunal’s copying and pasting from the Respondent’s submissions was unfortunate, it did not establish that the Tribunal had surrendered its judicial function or that the Claimant had suffered injustice.

2. Applying Crinion & Anor v IG Markets Ltd [2013] EWCA Civ 587, the EAT held that copying material supplied by one party is thoroughly bad practice, particularly where contentious material is used. The decisive question is nevertheless whether careful examination shows that the tribunal independently evaluated the essential issues and gave sufficiently apparent reasons for its dispositive findings.

3. The Tribunal’s findings on the complaint concerning the altercation with Mr Grant, the handling of the grievance, and the dismissal were its own findings of fact. They addressed the substance of the Claimant’s case. The absence of an express reference to every submission did not permit an inference that it had been ignored, because the Tribunal’s reasons made clear why it was rejected.

4. The EAT accepted that the Tribunal’s observation that the Claimant liked working for the Respondent was not a strong reason for rejecting a continuing-act argument. That error was immaterial. The Tribunal had separately found no substantive link between the earlier alleged one-off incidents and the dismissal process. Further, every complaint had been rejected on the merits, so the limitation conclusion was not determinative.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal against the Employment Tribunal’s rejection of his race discrimination, harassment and victimisation claims.
• Employment Tribunal, London South: decision sent to the parties on 13 January 2016. It rejected the claims on their merits and held that complaints before 22 October 2014 were out of time.