M Anea v OCS UK & I Limited & Ors

An Employment Tribunal may prefer one witness’s evidence to another’s after assessing the evidence as a whole. It must not apply an inflexible rule which automatically rejects a party’s evidence whenever there is a factual dispute.

Witness-evidence guidance, including the fallibility of memory and the importance of contemporaneous material, supplies practical assistance rather than immutable legal rules. A general credibility assessment does not itself establish an error of law where the judgment, fairly read as a whole, shows that the tribunal resolved the material disputes by reference to the evidence. Appellate intervention requires an identifiable and material error of law, not hypercritical scrutiny of imperfect wording.

The claimant appealed against the Employment Tribunal’s dismissal of her complaints of sexual harassment and constructive unfair dismissal. She alleged that her supervisor had bullied and harassed her and that her line manager had made a sexually offensive comment and gesture. She resigned after raising a grievance.

The Tribunal found the respondents’ evidence credible and stated that, where there was a factual clash, it preferred their evidence. The claimant contended that this disclosed an impermissible inflexible rule which wholly discounted her evidence on every disputed issue. The central issue was whether the Tribunal’s judgment, read fairly and as a whole, revealed such an error of law.

1. Appeal dismissed. The Employment Tribunal did not adopt an inflexible rule that the claimant’s evidence would always be rejected where it conflicted with the respondents’ evidence.
2. The impugned statement was poorly expressed when read in isolation. Read with the Tribunal’s preceding assessment and its substantive findings, however, it showed an iterative process in which the Tribunal considered the evidence and made findings on the particular complaints. The general credibility conclusion followed those findings; it was not their automatic premise.
3. Guidance on the limits of memory, the significance of contemporaneous documents and the need to analyse evidence in component parts is not a set of strict rules of law. It should assist fact-finding, which remains sensitive to the evidence in the individual case. A tribunal may prefer one party’s evidence where its overall appraisal supports that conclusion.
4. The Tribunal was entitled to take account of the claimant’s failure to raise the alleged sexual harassment when she made a later grievance, and of the absence of complaints by colleagues said to have witnessed the events. The fact that victims of sexual offences may not report an incident promptly does not create a rule forbidding that evidential inference. The Tribunal was also entitled to assess the claimant’s late additions to her account, her challenge to documents she said she had not read, and the absence of supporting evidence.
5. An appeal against fact-finding requires an identifiable error of law capable of making a material difference. Appellate courts must accord substantial deference to the first-instance tribunal and should not overturn findings through hypercritical examination of the judgment’s structure or wording. No such error was shown.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s dismissal of the sexual-harassment and constructive-unfair-dismissal complaints was upheld.
• Employment Tribunal, Birmingham: Following a hearing between 31 July and 8 August 2023, the Tribunal dismissed the relevant complaints in a judgment sent to the parties on 9 August 2023.