Lema v DHL Supply Chain Ltd

An appellate tribunal will not reopen an Employment Tribunal’s factual findings merely because a party disagrees with them. A challenge requires an arguable error of law, such as failure to consider relevant evidence, reliance on irrelevant material, speculation, perversity, or inadequate reasons.

A fair hearing may require an interpreter where a litigant’s command of English prevents effective participation. There is, however, no automatic entitlement merely because an interpreter was requested. The decisive question is whether the litigant could give the account they wished to give. Medical evidence must be given due regard. Where a tribunal appears not to have addressed material agreed medical evidence which may affect its findings, an arguable error of law may arise.

The Claimant appealed from the decision of the Watford Employment Tribunal, sent to the parties on 6 April 2017. The Tribunal upheld only his claim for accrued holiday pay. It dismissed claims including unfair dismissal, public-interest-disclosure dismissal, breach of contract, unlawful deductions, disability discrimination, victimisation and harassment.

At a Rule 3(10) oral hearing, the Employment Appeal Tribunal considered amended proposed grounds. They concerned the absence of a Spanish interpreter, the finding that there had been no dismissal, and the Tribunal’s treatment of psychiatric medical evidence. The central issue was whether any proposed ground disclosed a reasonable question of law for a full appeal hearing.

1. The Rule 3(10) application was allowed in part. The proposed medical-evidence ground was permitted to proceed to a Full Hearing. The interpreter ground, the unfair-dismissal ground, and the grounds which sought to reopen factual findings were dismissed as unarguable.

2. The Employment Appeal Tribunal’s jurisdiction is confined to questions of law under section 21(1) of the Employment Tribunals Act 1996. Findings of fact, including assessments of witness reliability, are for the Employment Tribunal. An appeal against such findings is unlikely to succeed unless the Tribunal ignored relevant evidence, considered irrelevant matter, speculated rather than relied on evidence, acted perversely, or gave inadequate reasons. None of the proposed factual challenges identified such an error.

3. A litigant who needs language assistance to participate effectively must be provided with an interpreter as part of a fair hearing. Applying Hak v St Christopher’s Fellowship [2016] IRLR 342, the question is whether the litigant’s command of English enabled them to give their best account on the disputed matters. There is no absolute entitlement merely because an interpreter was requested. Although the initial request should have been addressed, the Claimant had not pursued it, identified no specific resulting handicap, and his alleged evasiveness was not attributable to misunderstanding. The ground therefore had no reasonable prospects of success.

4. The dismissal challenge disclosed no error of law. The Employment Tribunal was entitled to find that the claim had been presented before the effective date of termination, within section 111(3) of the Employment Rights Act 1996. In any event, it had considered the allegation of constructive dismissal in the alternative and permissibly found no fundamental breach of contract.

5. The medical-evidence ground was arguable. The psychiatric report had been obtained to assist with disability under section 6 of the Equality Act 2010, after which disability was conceded. The report might nevertheless have borne on whether the Claimant was unwilling or unable to attend work and thus on section 15(1). Under Brighton v Tesco Stores Ltd UKEAT/0165/15, a tribunal should give due regard to agreed medical evidence and explain any rejection of it. Its absence from an otherwise comprehensive judgment made a Full Hearing appropriate.

• Employment Appeal Tribunal: At a Rule 3(10) hearing, allowed the medical-evidence ground to proceed to a Full Hearing and dismissed the remaining proposed grounds: [2018] UKEAT 0315_17_2103.
• Employment Tribunal, Watford: In a reserved judgment sent on 6 April 2017, upheld accrued holiday pay only and dismissed the Claimant’s remaining employment claims.