Factual and Procedural Background
The Appellant was employed by the Respondent, a Health Trust, as a hospital housekeeper from June 2014 until her resignation took effect in November 2022. She was the primary carer for her son, who had complex disabilities, and the Respondent made various adjustments to her working arrangements. [1][2][3]
The Appellant brought claims concerning associative disability discrimination, flexible working, victimisation, constructive unfair dismissal, breach of contract and direct disability discrimination. The Industrial Tribunal dismissed all claims, following which the Appellant appealed to the Court of Appeal. [4][5]
The appeal raised alleged errors of law, failures to consider evidence, apparent bias and denial of a fair hearing. [5]
The appellate court continued the Tribunal’s anonymity order and referred to the parties as the Appellant and the Respondent. [6]
Legal Issues Presented
- Whether the Tribunal erred in dismissing the Appellant’s claims concerning flexible working, constructive unfair dismissal, associative disability discrimination, victimisation, direct disability discrimination and breach of contract. [7][8]
- Whether the Tribunal failed to apply the duty to make reasonable adjustments under section 4A(3) of the Disability Discrimination Act 1995. [9]
- Whether the Tribunal failed to provide the Appellant with a fair hearing or acted with apparent bias. [10][11]
- Whether any established procedural complaint rendered the first-instance hearing legally unfair. [11]
Arguments of the Parties
Appellant’s Arguments
- The Respondent reorganised the hearing bundles at a late stage. [12]
- The Tribunal improperly restricted cross-examination and failed to address an alleged change in a witness’s evidence. [13]
- The Tribunal interrupted the Appellant’s evidence, failed to accommodate her caring responsibilities and required matters to be dealt with in written submissions. [14]
- The Employment Judge made comments suggesting that the Appellant was entrenched in her position, favoured the Respondent, or was dismissive of her difficulties. [15][16][17]
- The Appellant alleged retaliation after raising concerns about discrimination and harassment, and challenged the Tribunal’s findings on the substantive claims. [18][19]
Respondent’s Arguments
- The Tribunal had invested substantial care in case management, permitted amendments, allowed additional preparation time, permitted the recall of a witness and arranged hearing timetables for the Appellant’s convenience. [20]
- The Appellant received breaks, was permitted to call an additional witness, cross-examined all Respondent witnesses and had access to legal advice and training. [20][21]
- The Tribunal enabled the Appellant to make oral and written submissions and offered assistance concerning evidence and procedural matters. [20][21]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| TF v Northern Ireland Public Services Ombudsman [2022] NICA 17 |
The appellate court must determine procedural unfairness for itself by identifying the material facts and considerations; no margin of appreciation applies to that issue. |
The court applied this approach in assessing the Appellant’s fair-hearing complaint. [22][23][24] |
| Edwards v Bairstow |
The principles concerning legal error and irrationality remain relevant to appeals involving errors of law other than procedural unfairness. |
The court distinguished those principles from the separate assessment of procedural unfairness. [25][26] |
| Nesbitt v The Pallet Centre |
Where a fair-hearing denial is established, the court must consider whether the process as a whole was unfair and whether avoiding the alleged defect could have resulted in a different outcome. |
The court used this framework when considering the effect of the alleged procedural defects. [26][27][28] |
Court’s Reasoning and Analysis
The court treated the Tribunal’s factual findings as central to the appeal. Those findings included that the housekeeping role required physical presence, that the Respondent had made substantial accommodations for the Appellant, and that the Appellant had rejected alternative roles and other proposed arrangements. [29][2][30]
The flexible-working claim was properly dismissed because the Appellant’s requests did not comply with statutory requirements and, alternatively, were out of time. The appeal grounds were insufficiently particularised and did not identify an error in the Tribunal’s reasoning. [31][32]
The constructive dismissal claim failed because no fundamental breach of contract was established. The Tribunal had found that the Respondent made repeated efforts to accommodate the Appellant, and that her resignation was connected to alternative employment and followed a substantial delay after the alleged triggering event. [33]
The associative discrimination claim failed because the Tribunal found no less favourable treatment connected with the disability of the Appellant’s son. The Tribunal had instead found that the Respondent made significant efforts to assist the Appellant. [34][35]
The victimisation claim failed because the relevant reduction in hours had been agreed, was not prompted by complaints and was later reversed. The monitoring and alternative-employment options were also found to be reasonable. [18]
The direct disability discrimination claim failed because the Respondent had not been alerted to any disability of the Appellant, the medical evidence identified stress only, and there was no established comparator, less favourable treatment or detriment. [36]
The breach-of-contract claim failed because no breach of an employment term was established. The reasonable-adjustments ground also failed because the statutory duty arose only where the employer knew or ought reasonably to have known that the employee was disabled, which condition was not satisfied. [37][8][9]
The harassment, overriding-objective, evidence and misapplication-of-law grounds were either unsupported, unparticularised or unrelated to issues determined by the Tribunal. [38][39]
For the fair-hearing ground, the court held that the Appellant bore the burden of proving both the alleged procedural facts and the legal consequence of procedural unfairness. [40][11]
The court reviewed the hearing materials, including recordings, transcripts and contemporaneous notes, and considered all 117 alleged procedural defects. It found that the Tribunal had assisted the Appellant, allowed breaks and additional opportunities, explained procedural matters, identified evidential gaps and facilitated further evidence and submissions. [41][42][43][44]
The governing duty was to provide each party with a fair and reasonable opportunity to present its case and challenge the opposing case, while maintaining absolute impartiality. The Tribunal had latitude in managing proceedings, but that latitude could not justify denying a fair hearing. [45][46]
Although special measures may be needed to secure equality of arms for an unrepresented litigant, such measures must be consistent with impartiality. The court found that the Tribunal’s conduct satisfied those requirements. [47]
Viewing the proceedings as a whole, the court found no complaint of substance or merit and no denial of the Appellant’s right to a fair hearing. [48]
Holding and Implications
The appeal was dismissed, and the Tribunal’s decision was affirmed in its entirety. [49]
The Appellant’s claims remained dismissed. The decision applied existing principles concerning tribunal fact-finding, procedural fairness and appellate review; the opinion did not state that it created a new precedent. [29][45][49]