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Employment Tribunal’s ‘Intemperate’ Language Criticised

NHSA psychiatrist who was in line for a substantial compensation payout after her NHS bosses were dealt harsh criticism by an Employment Tribunal (ET) will have to fight her case all over again due to the ET’s lack of adequate reasoning in its strongly worded decision.

In upholding the psychiatrist’s claims of disability discrimination and victimisation against the NHS Trust for which she worked, the ET had described the employer’s witnesses variously as ‘authoritarian and domineering’, ‘unpleasantly insensitive’, ‘uncompromising and oppressive’ and ‘inconsiderate and high-handed in the extreme’.

Challenging the decision before the Employment Appeal Tribunal (EAT), the Trust’s legal team argued, amongst other things, that the language used by the ET revealed that it had failed entirely to engage with the employer’s case and had abandoned altogether its duty to be objective.

Whilst refusing permission for the use of intemperate language to be relied upon by the Trust as a free-standing ground of appeal, the EAT found that the reasons the ET gave for its decision, following a nine-day hearing, were ‘flawed and insufficient’ in several respects. Certain of its findings of fact were ‘perverse’ and that had infected its assessment of the credibility of the Trust’s witnesses.

Allowing the Trust’s appeal and remitting the case for re-hearing, the EAT noted, “The freshly constituted tribunal must start entirely afresh. It must reach its own assessment of the witnesses unaffected by any views of the previous tribunal.” Given the already substantial procedural history and cost of the case, the EAT urged the parties to attempt to resolve their differences through mediation.