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Improving the transparency of decisions at Employment Tribunals

Background

Following the conclusion of an Employment Tribunal (ET), the Judge must give reasons for the decision on any disputed issue. However, witnesses sometimes find the reasons given are unclear and complicated. The recent case of Kibirango v Barclays Bank & others states that the reasons must be candid, intelligible, transparent and coherent.

The Facts

The claimant was a black computer software consultant and was dismissed by the bank after 11 weeks due to alleged poor performance. He claimed race discrimination and harassment, alleging that he has been less favourably treated than a white comparator.  His claim was dismissed by a Tribunal, on the basis that they preferred the evidence given by the respondent’s witnesses to that given by the claimant. He appealed the decision, claiming that the reasons given by the Tribunal were inadequate for him to understand why he had lost.

An appeal was allowed by the Employment Appeal Tribunal (EAT), holding that a Tribunal cannot fulfil its obligation to give adequate reasons by saying that it preferred the evidence of one witness over another, without saying more than that. As a result, an ET should clearly set out why one version of events has been preferred to another. These reasons are an important feature of the fairness of a hearing because without them, it is impossible to determine if the Tribunal has properly performed and exhausted its duty to try the case fairly to both parties. In this case the EAT directed that a fresh Tribunal be constituted in order to determine the claimant’s claim in light of the new principles.

This judgment is an important one for Tribunals as it should encourage them to ensure that they give sufficient explanation in their judgements. However, it should be noted that, an appeal similar to this would only be likely to lead to the matter being re-heard by another tribunal, not simply an overturned decision.

Judgement

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