Stuart Harris Associates Limited v A Gobudhun

A tribunal may express firm preliminary views after hearing most of the evidence if it makes clear that they are provisional and remains open to persuasion. Limited judicial research, including into relevant administrative practice, is permissible where the parties receive a fair opportunity to address it.

A finding that a professional acted dishonestly ordinarily requires that distinct allegation to be fairly put to the witness. General questioning about the impugned conduct is insufficient. The failure is a serious procedural irregularity where the finding is material, but it need not invalidate independent findings that support the result. In determining dishonesty, the tribunal must first find the person’s actual knowledge or belief and then apply objective standards of ordinary decent people.

The Claimant, an accountant, resigned after receiving a final written warning for refusing to include routine estimated expenses in clients’ tax returns. She alleged that the instruction required improper conduct and destroyed trust and confidence.

The Watford Employment Tribunal upheld her claim for constructive unfair dismissal, compensation and costs. It found that the expenses practice was dishonest or, alternatively, incompetent, and that requiring the Claimant to follow it and disciplining her for refusal breached the implied term of trust and confidence.

The employer appealed. It alleged apparent bias and unfair conduct by the Employment Judge, and challenged in particular the unput finding of dishonesty and the approach to the test for dishonesty.

1. Appeal allowed in part. The findings that Mr Harris acted dishonestly in paragraphs 93 and 94 of the Tribunal’s judgment were set aside. The Tribunal’s conclusion that the Claimant had been constructively unfairly dismissed, together with its findings on contribution, compensation and costs, remained in force.

2. There was no apparent bias or prejudgment. Applying Southwark LBC v Jiminez, a strongly expressed view may still be provisional. The Case Summary was issued after most evidence and written submissions had been received. It repeatedly stated that the views were provisional and invited further submissions. Its detailed reasoning did not show that the Judge’s mind was closed.

3. The Judge had not unfairly descended into the arena. A judge may undertake limited and relevant legal research if parties can address its results. HMRC practice was relevant because both parties had relied on HMRC manuals. Most interventions during cross-examination sought clarification. The phrase “chancing an arm” was injudicious, but an isolated departure from good practice did not render the hearing unfair.

4. The finding of dishonesty was procedurally unfair. The Claimant had alleged wrongful or potentially fraudulent practice, but had not expressly alleged that Mr Harris himself was dishonest. In the professional context, general questioning about the practice did not fairly put that distinct allegation to him. The failure was a serious procedural irregularity.

5. The dishonesty finding was independently defective because the Tribunal had not made sufficient findings about Mr Harris’s actual knowledge and beliefs before applying objective standards, as required by Ivey v Genting Casinos (UK) Ltd. The alternative finding of incompetence could stand.

6. The irregularity did not taint the entire decision. The instruction to follow the expenses practice, and the final warning for refusing it, independently amounted to a repudiatory breach of the implied term of trust and confidence. The Claimant resigned in response to that breach.

• Employment Appeal Tribunal — allowed the employer’s appeal in part and set aside the dishonesty findings: [2023] EAT 145.
• Watford Employment Tribunal — upheld the Claimant’s constructive unfair dismissal claim and awarded compensation and costs. A citation is not stated in the judgment.