MacLeod v The University Court of the University of Glasgow

An Employment Appeal Tribunal may not re-open Employment Tribunal orders outside the means provided by the applicable procedural rules and case law. New information casting suspicion on an expert’s competence in an unrelated case does not, without concrete and persuasive evidence of comparable misconduct in the claimant’s own case, provide a sufficient basis to disturb the earlier proceedings or grant appellate relief.

The claimant’s Employment Tribunal case had been subject to prolonged delay and procedural difficulty. It was ultimately struck out.

On appeal, the claimant relied on the later removal from practice of Dr McLennan, who had prepared a joint expert report in her case. She contended that the report had misrepresented her account and that the subsequent procedure was thereby vitiated. The disciplinary findings concerned another litigant and another Employment Tribunal case.

The central issue was whether that later material justified re-opening the earlier Employment Tribunal proceedings or otherwise allowing the appeal against the strike-out.

1. Appeal refused. The material before the Employment Appeal Tribunal did not provide a basis for allowing the appeal or making any further order.
2. The respondent’s submission that there was no mechanism comparable to res noviter was not accepted as an accurate statement of the law. Nevertheless, the Tribunal’s appellate powers to re-open Employment Tribunal orders were confined to the means stipulated by the procedural rules and case law. The grounds of appeal did not permit an inquiry into the propriety of the expert’s report.
3. In any event, the later disciplinary material did not establish misconduct by the expert in this case. It showed findings arising from another litigant’s complaint in comparable circumstances, but supplied no concrete or persuasive indication that the expert had similarly misrepresented this claimant’s interview or report.
4. The claimant’s earlier discontinuance of her professional complaint, and her failure to complete her evidence before the Employment Tribunal, did not by themselves prevent her from complaining about the report. She had expressed dissatisfaction with it, and a joint report would have been difficult for her to challenge without corroborative material. Those matters did not overcome the absence of a proper procedural route or sufficient evidence for appellate relief.
5. The later events cast doubt on the expert’s competence and objectivity, but the Tribunal could not speculate about any connection between the report and the later strike-out. No motion to challenge the report or seek a replacement expert had been made at the hearing where the expert evidence was considered. The appeal was therefore refused.

• Employment Appeal Tribunal: appeal against the Employment Tribunal’s strike-out of the claimant’s case refused.
• Employment Tribunal: the claimant’s case was struck out. The judgment refers to a decision of Employment Judge Cape dated 29 November 2010, but gives no citation.