Andrews v Bryson Charitable Group

Factual and Procedural Background

The Appellant, formerly employed by the Respondent under a fixed-term contract from 2 October 2017 to 29 June 2018 as maternity leave cover, initiated two tribunal claims following termination of her employment. The first claim, concerning wages, was dismissed by the Industrial Tribunal in April 2019. The present appeal concerns the second claim, initiated on 26 March 2019, which arose from the Appellant’s grievance alleging unlawful detriment and less favourable treatment related to her whistleblowing activities and subsequent grievance process.

The Tribunal found that the Appellant failed to establish a prima facie case of detriment or less favourable treatment and noted that the Respondent voluntarily conducted a full investigation into the grievance, applying a fair procedure. The Appellant contended that she did not receive a fair hearing at the Tribunal, raising issues including refusal of a McKenzie Friend, intimidation due to spectators, inability to adequately represent herself owing to panic attacks, procedural unfairness in provision of hearing bundles, and prohibition on questioning the Respondent’s witnesses.

The appeal has been before the Court of Appeal since January 2021, experiencing delays partly attributable to the COVID-19 pandemic and the Appellant’s late payment of the court fee. After active case management and several procedural listings, the Appellant ceased communication and failed to attend scheduled hearings in September 2022. Despite this, the Court declined the Respondent’s application to dismiss the appeal for want of prosecution, considering the Appellant’s status as an unrepresented litigant and her prior engagement with the court.

Following receipt of correspondence from the Appellant in late September 2022, including confidential medical information explaining communication difficulties, the Court scheduled further case management directions and a hearing date in November 2022.

Legal Issues Presented

1. Whether the Industrial Tribunal erred in finding that the Appellant failed to establish a prima facie case of unlawful detriment or less favourable treatment related to her grievance and whistleblowing allegations.
2. Whether the Appellant was denied a fair hearing before the Industrial Tribunal, specifically regarding procedural matters such as refusal of a McKenzie Friend, management of hearing bundles, the presence of spectators, and restrictions on cross-examination.
3. Whether the appeal should be dismissed for want of prosecution given the Appellant’s failure to communicate and attend scheduled hearings.

Arguments of the Parties

Appellant's Arguments

• The Tribunal refused her request to be accompanied by a McKenzie Friend, undermining her ability to participate effectively.
• The hearing was turned into a “spectator event” benefiting law students, creating an intimidating environment.
• She suffered two panic attacks during the hearing, impairing her capacity to represent herself adequately.
• There was unfairness in the provision and handling of hearing bundles.
• She was not permitted to question the Respondent’s witness(es).
• There was an inequitable and unbalanced presence of representatives and spectators favoring the Respondent, which was intimidating and impacted her ability to present key arguments.

Respondent's Arguments

• The Respondent voluntarily subjected the Appellant’s grievance to a full investigation and applied a fair procedure.
• The Appellant failed to establish any prima facie or arguable case of unlawful detriment or less favorable treatment.
• The Respondent filed an application to dismiss the appeal for want of prosecution based on the Appellant’s failure to communicate and attend hearings, though this application was ultimately rejected by the Court.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully considered the procedural history and the Appellant’s engagement with the appeal process. It acknowledged the Appellant’s status as an unrepresented litigant and her compliance with court directions during the initial case management phase. The Court found that although there was a period of inactivity and non-attendance by the Appellant after early March 2022, the circumstances, including the pandemic and the Appellant’s disclosed medical difficulties, did not justify dismissal for want of prosecution.

Regarding the substantive appeal, the Court noted the Tribunal’s finding that the Appellant’s case amounted to unsupported assertions and that the Respondent had conducted a fair grievance investigation voluntarily. The Tribunal’s assessment of procedural fairness and the absence of a prima facie case of unlawful detriment were accepted by the Court as reasonable conclusions based on the evidence presented.

The Court also recognized the Appellant’s complaints about procedural fairness at the Tribunal level, including the refusal of a McKenzie Friend and other factors alleged to have impacted her ability to present her case. The Court ordered the Respondent to respond evidentially to these complaints and scheduled a further hearing to consider these issues, indicating a willingness to scrutinize procedural fairness in the forthcoming proceedings.

Holding and Implications

The Court’s decision was to refuse the Respondent’s application to dismiss the appeal for want of prosecution and to proceed with further case management and hearing directions. The appeal was not abandoned despite the Appellant’s period of non-communication and non-attendance, reflecting the Court’s careful balancing of procedural fairness with the need for finality.

The immediate effect is that the appeal remains active, with a scheduled hearing and further evidence to be presented regarding the Appellant’s complaints of unfairness at the Tribunal. No new legal precedent was established; rather, the Court applied existing principles to the procedural circumstances of this case and preserved the Appellant’s right to have her substantive complaints heard.