Joshua Yetman succeeds in Employment Appeal Tribunal

In Tradition Management Services Limited v Mr Philip Taylor (EA-2021-000953-DXA) Joshua acted as sole counsel for the Claimant as Respondent to the appeal before His Honour Judge Auerbach. The appeal was dismissed and oral reasons were given on 18 January 2024.

The case addressed the approach the Employment Tribunal is to take when determining allegations of sexual harassment without hearing live evidence from the complainant, in the context of a wrongful dismissal claim.

The decision reiterates that whilst employers are entitled to rely upon hearsay statements and documentary evidence gathered as part of disciplinary proceedings to prove an allegation, tribunals are entitled to give that evidence less weight so as to make no finding either way. This is because employers have to prove allegations of gross misconduct according to the balance of probabilities in order to summarily dismiss.

There will be no error as long as it is reasonably clear the tribunal:

1. considered itself able to make a finding on the basis of hearsay statements and documentary evidence, and;
2. that this was the case absent live evidence from complainants. HHJ Auerbach was satisfied the tribunal did so and the appeal was dismissed.

The case is a salutary reminder of three things.

1. The importance of parties sufficiently addressing wrongful dismissal claims, in terms of evidence and submissions at first instance, rather than focusing on unfair dismissal claims under the Employment Rights Act 1996.
2. Where there is a reconsideration judgment it will be read alongside the liability decision. This has the potential to allow tribunals to perfect reasoning in a manner that can be adverse to an appellant’s prospects.
3. If an employer is reluctant to call complainants to give live evidence for entirely understandable reasons, thought should be given to alternatives such as filing signed written statements underpinned by a statement of truth. Whilst this will be less potent than live evidence, the weight attached could make the difference when compared to statements arising from disciplinary proceedings.

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