Following the conclusion of an Employment Tribunal hearing, it is not uncommon for witnesses to want to better understand the importance of their evidence, the role that it played in formulating the Employment Judge’s decision and the weight that the Employment Judge attached to it.
In the same token, where cases turn on the facts of a specific incident or incidents or when there is little contemporaneous documentation to support the parties’ positions, it is likely that the outcome of the hearing will turn on whose evidence the Employment Judge prefers.
Despite the significance of witness credibility in Employment Tribunal proceedings, there has been very little case law over the years which specifically deals with the steps that an Employment Judge must take in order to explain why he or she prefers one witness’ evidence over another.
The recent case of Kibirango –v- Barclays Bank & others UKEAT/0234/14/JOB provides some useful guidance in respect of this point.
Mr Kibirango was a black computer software consultant who worked for Barclays Bank. He was dismissed after 11 weeks of employment on account of his poor performance. He raised claims of race discrimination and harassment against his former employer and two of its officers on the grounds that he had been less favourably treated than a white comparator.
His claim was dismissed by the Employment Tribunal on the basis that the presiding Employment Judge preferred the evidence of the Respondents’ witnesses to that of the Claimant.
Mr Kibirango sought to appeal the Employment Tribunal’s judgment as he considered that the reasons given by the Employment Judge as to why the evidence of the Respondents’ witnesses was preferred, was insufficient as it did not allow him to understand why his claim was unsuccessful.
The Employment Appeal Tribunal allowed the Claimant’s appeal and held that:
an Employment Appeal Tribunal cannot fulfil its obligation to give adequate reasons for a finding of fact by saying that it preferred the evidence of one witness over another, without saying more than that;
in dealing with its findings of fact, an Employment Tribunal should set out the nature of the conflicting evidence in respect of each point and clearly set out why one version of events has been preferred to another; and
adequate reasons as to why one version of events in preferred to another are an important feature of the fairness of a hearing because without these reasons it is impossible to determine if the Tribunal has properly performed and exhausted its duty to try the case fairly to both parties.
The Employment Appeal Tribunal directed that a fresh Tribunal be constituted in order to determine the Claimant’s claim in light of the above principles.
The Kibirango decision should be of benefit to witnesses in Employment Tribunal proceedings by improving transparency of the decision making process and ensuing that decisions that address these features are understandable and candid. It is also helpful for practitioners as it highlights the possibility for a potential appeal point to be advanced on the basis that the judgment does not sufficiently explain why a party has won or lost a case where the credibility or reliability of witness evidence has been critical to the decision.