B (t/a C) v A [2025] NICA 2: Appeals on Law Only; Non-Prosecution and Lack of Corroboration Do Not Bar Sexual Harassment Findings

Introduction

This commentary analyzes the Court of Appeal in Northern Ireland’s decision in B (Trading as C) v A [2025] NICA 2, delivered ex tempore by Keegan LCJ on 7 January 2025, with McCloskey LJ and Kinney J concurring. The case arose from an appeal by a personal litigant (the sole director/owner of a restaurant) against an Industrial Tribunal’s liability finding of sexual harassment under the Sex Discrimination (Northern Ireland) Order 1976, in relation to an 18-year-old part-time waitress. The Tribunal had reserved remedy to a later hearing.

The appeal presented two core issues:

• Whether time to appeal should be extended where a Tribunal has split liability and remedy hearings and a personal litigant is confused about when to appeal; and
• Whether the appeal raised a valid point of law (as required for appeals from Industrial Tribunals), particularly where the appellant’s grounds were: (i) a Public Prosecution Service (PPS) decision not to prosecute; (ii) “no evidence”; and (iii) “no witnesses.”

The Court extended time to appeal but dismissed the appeal on the merits, reaffirming the appellate limits on re-trying factual disputes and clarifying important points about the proof of sexual harassment in civil proceedings.

Summary of the Judgment

• Extension of time: Although the notice of appeal was approximately four months late, the Court exercised its discretion to extend time (Rules of the Court of Judicature (NI) 1980, Orders 59 and 3; Davis v Northern Ireland Carriers [1979] NI 19; Mahmood v Secretary of State for the Home Department [2023] NICA 4), given the split hearing (liability then remedy), the appellant’s genuine confusion, lack of prejudice to the respondent, and the flexible approach appropriate to context.
• Appeal limited to points of law: Under Article 22 of the Industrial Tribunals (NI) Order 1996, appeals lie only on a point of law. The Court reiterated that it does not rehear the case and will not revisit factual findings unless they are perverse or unsupported by evidence (Donna Nesbitt v The Pallett Centre Ltd [2019] NICA 67; Mihail v Lloyds Banking Group [2014] NICA 24; Chief Constable of the RUC v Sergeant A [2000] NICA 29; Edwards v Bairstow [1956] AC 14).
• Merits dismissed: The grounds of appeal—PPS non-prosecution, alleged lack of evidence or witnesses—did not disclose an error of law. The Tribunal was entitled to find sexual harassment proved on the balance of probabilities and to make credibility findings adverse to the appellant (notably at para 140 and para 193 of the Tribunal’s decision).
• Key clarifications:
  • A PPS decision not to prosecute does not preclude or determine a civil/industrial claim; different legal standards apply.
  • There is no legal requirement that sexual harassment be corroborated by witnesses or recordings. A Tribunal may lawfully decide on credibility where evidence is contested and uncorroborated.
  • Evidence regarding the claimant’s cannabis use and its impact on memory, including expert opinion (Dr Mangan), was for the Tribunal to weigh; its finding that memory was not undermined was plainly open to it.
  • Message evidence from 3 December 2022 was addressed by the Tribunal (e.g., para 181) with a rational basis for accepting the claimant’s explanation.
• Outcome: Time extended; appeal dismissed as “entirely without merit.” The Tribunal’s liability findings stand. Remedy judgment was awaited at the time of the Court of Appeal decision. Anonymity continued given ongoing proceedings.

Detailed Analysis

1. Precedents Cited and Their Influence

The Court anchored its reasoning in a well-established appellate framework. The interplay of these authorities is consequential: they draw a bright line between questions of law (proper on appeal) and findings of fact (ordinarily final).

• Article 22, Industrial Tribunals (NI) Order 1996: The statutory foundation for appeals—only on a “point of law.” This circumscribes the Court of Appeal’s role and precludes a rehearing of evidence or wholesale reassessment of credibility.
• Donna Nesbitt v The Pallett Centre Ltd [2019] NICA 67: Reiterated the Article 22 gateway and framed the appellate question as whether an error of law has been shown. The Court here drew directly on Nesbitt (para [56]) to emphasize that the appeal cannot be a factual re-run.
• Mihail v Lloyds Banking Group [2014] NICA 24: Affirmed that the Court does not rehear cases from Industrial Tribunals and will accept factual findings unless “plainly wrong” (essentially perverse) or unsupported by evidence. This was used to dispose of the appellant’s “no evidence/no witnesses” ground, which was in reality a challenge to the Tribunal’s fact-finding and credibility assessments.
• Chief Constable of the RUC v Sergeant A [2000] NICA 29 (Carswell LCJ): Set out the “no evidence” and “perversity” limbs governing interference with Tribunal findings. This guides when an inference is speculation or when primary facts irresistibly point to the opposite conclusion. The Court found neither limb satisfied.
• Edwards (Inspector of Taxes) v Bairstow [1956] AC 14: The classic House of Lords articulation of the appellate test for disturbing fact-finding—employed to underscore the high threshold required to overturn Tribunal inferences.
• Davis v Northern Ireland Carriers [1979] NI 19 and Mahmood v Secretary of State for the Home Department [2023] NICA 4: Informed the extension-of-time analysis—emphasizing a flexible, contextual discretion and recognizing the practicalities affecting personal litigants and split decisions. The Court’s decision to extend time was grounded in these principles.
• Rules of the Court of Judicature (NI) 1980, Orders 59 and 3: Provided the procedural jurisdiction to extend time for appeal.

2. The Court’s Legal Reasoning

(a) Jurisdictional limits: appeals on points of law only

The Court’s starting point was statutory. By operation of Article 22 of the 1996 Order, the Court of Appeal may only entertain appeals raising a point of law. Consequentially:

• The Court does not conduct a rehearing.
• Factual determinations, including credibility assessments, are for the Tribunal, unless they are perverse or unsupported by any evidence.
• Appellants must identify a specific legal error (misdirection, misapplication of law to facts, irrationality in the Edwards v Bairstow sense, procedural unfairness amounting to an error of law, etc.).

The appellant’s grounds—non-prosecution by the PPS, alleged lack of evidence, and absence of witnesses—did not articulate a legal error. They amounted to an invitation to reweigh evidence, which the Court declined.

(b) Extension of time in split-hearing cases

Although the appeal was roughly four months late, the Court exercised its discretionary power to extend time. It considered:

• The appellant’s status as a personal litigant;
• The split nature of the Tribunal proceedings (liability first, remedy later), which reasonably led to confusion about when the appeal period ran—evidenced by the notice’s reference to the September remedy date;
• Minimal prejudice to the respondent; and
• The flexible approach endorsed in Davis and Mahmood.

Importantly, while the Court hinted at the need for clearer guidance on time limits where tribunals bifurcate hearings and on communications to personal litigants (especially when judgments are sent by post), it expressly left those “points of practice” for another day. Nonetheless, the decision signals a pragmatic, fairness-oriented approach to extension applications in this procedural context.

(c) PPS non-prosecution is irrelevant to civil liability

The appellant relied on a PPS letter (19 February 2024) indicating no criminal prosecution. The Court reaffirmed the orthodoxy: decisions not to prosecute do not determine or bar civil or industrial claims. The standards of proof differ (beyond reasonable doubt in criminal proceedings; balance of probabilities in civil/tribunal cases), and the aims and evidential regimes are not coterminous. The Tribunal had recognized this at para 29 of its judgment, and the Court endorsed that approach.

(d) No requirement for corroboration or witnesses in sexual harassment claims

Responding to the “no evidence/no witnesses” ground, the Court stated plainly that the law imposes no requirement for harassment to be recorded, witnessed, or otherwise corroborated. Many harassment incidents occur in private. The Tribunal, having heard both parties, was entitled to prefer the claimant’s evidence, make credibility findings (notably at para 140), and conclude that harassment was proved on the balance of probabilities (para 193). There was no legal error in that approach.

(e) Evidential challenges: memory and messaging

The appellant contested the claimant’s reliability by reference to cannabis use and a December 2022 messaging exchange:

• Cannabis/use and memory: The Tribunal heard evidence, including expert opinion from Dr Mangan, and found the claimant’s memory not undermined (paras 153–154). This factual finding was “plainly open” to the Tribunal; there was no basis to impugn it on appeal.
• Messages of 3 December 2022: The Tribunal addressed these (e.g., para 181) and accepted the claimant’s explanation. Again, the Court saw no perversity or absence of evidential foundation.

(f) Overall disposition

Having applied the governing appellate principles, the Court characterized the grounds as “manifestly feeble,” found no error of law, and dismissed the appeal. The Tribunal’s liability findings for sexual harassment under the 1976 Order stand. Remedy had been heard on 26 September 2024 and judgment was pending; anonymity continued pending the conclusion of those proceedings.

3. Impact and Significance

(a) For appellate practice from the Industrial Tribunal

• Law-only appeals: The decision reinforces the limited scope of appellate review. Parties must identify legal misdirection, irrationality, or procedural unfairness; re-arguing facts or credibility will not suffice.
• High threshold for disturbing factual findings: The Court reiterates that “no evidence” and “perversity” standards are exacting. This provides stability and finality to Tribunal fact-finding.

(b) For procedural timeliness in split hearings

• Flexible extension of time: The Court’s approach signals a context-sensitive discretion, especially where liability and remedy are separated and personal litigants may misunderstand when time runs. While not laying down a new rule, the Court’s comments presage possible guidance on best practice for Tribunal communications about appeal windows.

(c) For discrimination/harassment litigation

• No corroboration requirement: The Court’s clear statement that sexual harassment claims need not be supported by witnesses or recordings is practically important. It acknowledges the private nature of much harassment and supports robust Tribunal engagement with credibility.
• Criminal decisions do not control civil outcomes: The explicit separation of PPS decisions from civil liability encourages victims to pursue civil remedies notwithstanding prosecutorial outcomes and reminds respondents that criminal non-prosecution is not exculpatory in civil law.
• Personal and corporate exposure: The Tribunal found against both the individual owner/director and the company. This underlines that individuals who perpetrate harassment, and their employing entities, can both face liability in discrimination law.

Complex Concepts Simplified

• Appeal on a point of law: An appeal that asserts the Tribunal misapplied legal principles, misdirected itself, acted irrationally (in the legal sense), or committed procedural unfairness. It is not a second bite at the factual cherry.
• Perverse finding: A conclusion that no reasonable Tribunal could reach on the evidence, or which is contradicted by the primary facts so powerfully that the opposite conclusion is irresistible (Edwards v Bairstow).
• No evidence ground: A challenge asserting that a finding rests on speculation rather than any evidence. If some evidence exists that could rationally support the finding, the ground fails.
• Standard of proof: Civil tribunals apply “balance of probabilities” (more likely than not). Criminal prosecutions require proof “beyond reasonable doubt.” A criminal non-prosecution therefore does not determine a civil claim.
• Split hearing: A Tribunal procedure dividing liability (whether the wrong occurred) and remedy (what compensation or orders follow). This can affect when time to appeal starts to run and can be confusing if not clearly communicated.
• Industrial Tribunal/Employment Tribunal: Specialist forum for employment and equality disputes, including discrimination and harassment claims.
• Sexual harassment (under the 1976 Order): Unlawful conduct of a sexual nature or related to sex that violates dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. It is a form of sex discrimination.
• Personal litigant: A party without legal representation. Courts may extend procedural latitude where fairness warrants it, but the legal standards and appellate thresholds remain the same.
• Anonymity: Protects identities in sensitive cases. Here, anonymity continued pending the Tribunal’s final rulings on remedy and anonymity itself.

Conclusion

B (t/a C) v A [2025] NICA 2 delivers a concise but important reaffirmation of core appellate and discrimination-law principles:

• Appeals from the Industrial Tribunal lie only on points of law; the Court of Appeal will not rehear facts or re-evaluate credibility absent “no evidence” or perversity.
• Criminal non-prosecution does not bar or decide civil liability. The differing standards of proof and purposes of proceedings must be kept distinct.
• There is no legal requirement for harassment to be corroborated by witnesses or recordings. Tribunals may lawfully decide contested cases on credibility and the available evidence.
• Time for appeal can be extended flexibly in split-hearing contexts, particularly for personal litigants and where prejudice is minimal—though fuller guidance on practice may follow in future cases.

The decision is significant for its practical clarity: it fortifies the finality of Tribunal fact-finding, underlines the autonomy of civil discrimination claims from criminal outcomes, and acknowledges the realities of evidencing workplace sexual harassment. For litigants and practitioners alike, it underscores that successful appeals must identify genuine legal error—not simply disagreement with a Tribunal’s view of the facts.