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Employment Judge’s ‘Florid’ Language Deprecated

In a warning to eloquent judges tempted to express themselves in overly robust terms, the Employment Appeal Tribunal (EAT) has deprecated a tribunal judge’s use of ‘florid’ language and ‘inappropriate hyperbole’ in upholding an employee’s unfair dismissal claim – but has nevertheless accepted that his conclusion was justified.

A manager who worked in the pharmaceutical department of a supermarket chain had claimed that he was penalised as a whistle-blower, having expressed concerns about the storage and sale of certain medicines. He argued that his dismissal for purported gross misconduct had been unfair in the ordinary sense and automatically unfair within the meaning of section 103A of the Employment Rights Act 1996.

In upholding each of his claims, an employment judge had, amongst other things, referred to the manager as having been the target of a ‘Machiavellian intrigue’. Describing his treatment as akin to that of a ‘troublesome priest’, the judge found that he had ‘paid the price’ for his integrity and professionalism and that his dismissal was a ‘stitch up’ after he had ‘put his head above the parapet’.

On appeal, the employer argued that the judge’s decision ‘at times read like a tirade by a tabloid journalist rather than a measured piece of judicial decision making’. It was submitted that the judge had lost objectivity and that his decision was long on powerful language but short on legal and factual analysis.

The EAT noted that the ‘inappropriate’ language used by the judge had given rise to the employer’s understandable conviction that he had become side-tracked from the real issues by his belief that the manager had been ‘very shabbily treated’. It was ‘not the tribunal’s finest hour’ and it had to bear its own share of responsibility for the fact that the employer had received that impression. “We trust that the employment judge will draft the findings of the tribunal in less exaggerated language in the future”, the EAT observed.

However, in upholding the tribunal’s finding that the manager had been unfairly dismissed, the EAT ruled that, on a careful re-analysis of the evidence, the judge had not lost objectivity and had been entitled to reach that conclusion. Before ruling on whether the manager’s dismissal was also automatically unfair, the EAT required the tribunal to provide further reasons for its conclusion that the disclosures made by the manager were protected.