L Chase v Northern Housing Consortium Ltd & Anor

An employment tribunal commits an error of law where, following an unreasonable delay in promulgation, its reasons fail to resolve material pleaded allegations, omit the necessary factual analysis, or do not enable the parties to understand the basis of its conclusions. A generic rejection of a claimant’s account cannot answer numerous distinct alleged detriments.

A list of issues is a case-management tool, not a pleading. Where a pleaded claim is omitted, the tribunal must consider whether it was abandoned and whether the interests of justice require determination.

Under section 43C(2) of the Employment Rights Act 1996, an authorised procedure may include an employer-appointed external investigation. The absence of internal responsibility does not prevent disclosures made through that procedure from being treated as made to the employer.

The claimant appealed from the dismissal by the Employment Tribunal sitting at Newcastle of claims including whistleblowing detriment, constructive unfair dismissal, direct disability discrimination, and failures to make reasonable adjustments.

She alleged that she had made extensive protected disclosures concerning procurement and contractual practices, and that the respondents subjected her to numerous detriments. She also alleged further reasonable-adjustment failures which appeared in her ET1 but were omitted from the case-managed list of issues. One disputed disclosure was made to an external auditor appointed by the first respondent to investigate earlier concerns.

The central issues were whether the Tribunal’s delayed reasons adequately determined the pleaded case, whether it could confine the reasonable-adjustment claims to the list of issues, and whether section 43C(2) protected the disclosure to the external auditor.

1. Appeal allowed and remitted. The Tribunal’s reasons were promulgated more than 13 months after the evidence and more than eight months after oral submissions. The delay was unreasonable. More importantly, the resulting reasons were so defective that they failed to provide an adequate and fair determination of the claim.

2. Applying Connex v Bangs, delay alone is not an independent appeal ground. It may, however, amount to a serious procedural error where it creates a real risk that a party has been deprived of a fair trial. Here, the errors, omissions, incoherent passages and lack of engagement with material allegations showed that the Tribunal had failed to determine essential issues and give adequate reasons.

3. The Tribunal addressed only 37 of 93 pleaded detriments. It failed, among other matters, to decide whether the refusal to extend contractual sick pay was materially influenced by a recent protected disclosure, and failed to address the allegation that the second respondent made a defamatory organisation-wide comment. A general finding that the Tribunal did not accept most of the claimant’s account could not cure those omissions. It also failed to analyse the content, seriousness and likely organisational impact of the disclosures when deciding causation.

4. The omitted reasonable-adjustment allegations had been pleaded. A list of issues is not a pleading. The Tribunal erred by treating the allegations as new, overlooking the claimant’s prompt objection to their omission, and failing to consider whether they had been abandoned or whether justice required them to be determined.

5. The Tribunal’s findings on when the claimant became disabled and when the respondents knew or ought reasonably to have known of the disability were open to it. Its rejection of the direct-disability-discrimination complaint about the March 2021 letter was also adequately reasoned.

6. The Tribunal misdirected itself on section 43C(2) of the Employment Rights Act 1996. The provision can apply where an employer authorises a procedure involving an external investigator. The Tribunal had to examine the nature and purpose of the auditor’s appointment and whether the procedure was authorised or expected to be used for protected disclosures. Treating the auditor’s lack of responsibility within the employer as decisive deprived the provision of practical effect.

7. The matter was remitted to a freshly constituted Tribunal for a complete rehearing. It must disregard every finding in the previous judgment, including findings on grounds which had not succeeded or were not challenged.

• Employment Appeal Tribunal: Appeal allowed. The Employment Tribunal judgment was set aside and the entire case remitted for rehearing by a freshly constituted tribunal: [2025] EAT 104.
• Employment Tribunal, Newcastle: The claimant’s claims were dismissed in a judgment sent to the parties on 3 November 2023. No citation is stated in the judgment.