Andrews and Bryson Charitable Group

Factual and Procedural Background

The Appellant was employed by the Respondent from 2 October 2017 to 29 June 2018 on a fixed term contract to provide maternity leave cover. After her employment ended, the Appellant initiated two tribunal claims. The first, a wages claim, was dismissed by the Industrial Tribunal in April 2019. The second claim, initiated on 26 March 2019, concerned allegations of detrimental treatment following the pursuit of a grievance related to whistleblowing disclosures and concerns about senior management conduct. The Industrial Tribunal found the grievance procedure fair and dismissed the claim for unlawful detriment or less favourable treatment. The Appellant, representing herself, appealed the Tribunal’s decision, asserting procedural unfairness during the hearing.

Legal Issues Presented

1. Whether the Appellant was denied procedural fairness during the Industrial Tribunal hearing, including the refusal of her request to be accompanied by a McKenzie Friend.
2. Whether the Tribunal’s refusal to allow the Appellant’s witnesses to remain in the hearing after giving evidence infringed on her right to a fair hearing.
3. Whether the presence of law students and the handling of hearing bundles contributed to an unfair hearing environment.
4. Whether the Appellant was unfairly prevented from questioning the Respondent’s witnesses.

Arguments of the Parties

Appellant's Arguments

• The Tribunal refused her request to be accompanied by a McKenzie Friend, denying her necessary support.
• The hearing was made intimidating by the presence of law students and an imbalance in representation favoring the Respondent.
• She suffered panic attacks during the hearing, impairing her ability to represent herself.
• There was unfairness in the provision and handling of hearing bundles.
• She was not permitted to question the Respondent’s witness or witnesses.
• The refusal to allow her witnesses to remain after giving evidence left her without assistance during the hearing.

Respondent's Arguments

• The Respondent did not dispute the Appellant’s public interest disclosures but focused on whether she suffered detrimental treatment.
• The Respondent’s solicitor stated no application for a McKenzie Friend was made during the hearing.
• The presence of law students was appropriate and non-intimidating.
• The refusal to allow witnesses to remain was due to pandemic-related seating restrictions and applied equally.
• The Appellant had previously represented herself successfully in earlier proceedings.
• The Respondent did not engage with specific procedural unfairness allegations in detail.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed scrutiny of the Appellant’s assertions of procedural unfairness, including the refusal to permit a McKenzie Friend and the exclusion of her witnesses after their testimony. The court found the Appellant’s account credible, balanced, and unchallenged on key points by the Respondent’s affidavits. It noted that the presiding judge prioritized the convenience of pupil barristers observing the hearing over the Appellant’s procedural rights, which was inappropriate. The court emphasized the importance of allowing unrepresented litigants reasonable assistance and the duty to provide reasons for decisions, finding the Appellant was denied this opportunity. The Respondent’s failure to address specific allegations of unfairness was significant. The court rejected the Respondent’s argument that the Appellant’s previous self-representation negated the need for assistance in this hearing, noting the increased stress and complexity. The court also considered but did not find merit in the Respondent’s reliance on disability adjustment jurisprudence, focusing instead on fundamental procedural fairness principles. Applying the precedent from R v Thames Valley Police, ex parte Cotton, the court concluded that the procedural irregularities could have affected the outcome, and thus the appeal should succeed.

Holding and Implications

The court ALLOWED THE APPEAL on the ground of established procedural unfairness during the Industrial Tribunal hearing. The matter is REMITTED FOR A FRESH HEARING before a differently constituted panel, which must proceed in accordance with the principles set out in this judgment.

The court expressly declined to comment on the substantive merits of the Appellant’s claim. The decision’s direct effect is to require a new hearing, ensuring procedural fairness is observed. No new legal precedent beyond procedural fairness obligations was established. The parties will have the opportunity to make submissions on the final court order and costs.