MacLeod v University Court of the University of Glasgow

The Employment Appeal Tribunal cannot reopen Employment Tribunal orders except through the procedures provided by the applicable rules and case law. An appeal founded on subsequently discovered concerns about an expert report requires a concrete and persuasive basis for concluding that comparable misconduct occurred in the appellant’s case and that a remedy is available within the appeal’s proper scope. Suspicion arising from disciplinary findings concerning the expert in another case is insufficient.

The appellant’s Employment Tribunal claim had a lengthy procedural history and was ultimately struck out. On appeal, she relied on the later striking-off of a joint expert, Dr McLennan, following disciplinary findings in another Employment Tribunal case.

She contended that the joint report in her own case had misrepresented her account, and that the subsequent proceedings had therefore been vitiated. The central issue was whether this later material justified reopening the Employment Tribunal’s orders or remitting the matter for investigation.

1. Appeal refused. The Employment Appeal Tribunal had no power to reopen Employment Tribunal orders other than by the means stipulated in the rules and explained in the case law.

2. The respondent was incorrect to submit that there was no procedural means at all equivalent to res noviter. That point did not assist the appellant because her grounds of appeal did not permit an order investigating the expert’s conduct in this case.

3. In any event, the material did not justify reopening the matter or a remission. The British Medical Association material and disciplinary conclusions concerned another litigant and another case. They created suspicion about the expert’s competence and objectivity, but gave no concrete or persuasive indication that she had acted improperly when preparing this appellant’s report.

4. The appellant’s earlier discontinuance of her professional complaint, and the fact that she had curtailed her Employment Tribunal evidence, did not by themselves preclude complaint about the report. However, no motion had been made at the hearing to challenge the report, have it disregarded, or appoint a new expert. The later information therefore provided no adequate basis for allowing the appeal or making another order.

• Employment Appeal Tribunal: Appeal against the strike-out of the appellant’s Employment Tribunal case dismissed.
• Employment Tribunal: The appellant’s case was struck out. An earlier decision of Employment Judge Cape, dated 29 November 2010, was referred to, but no citation was stated.