Tribunal: Not quite cut and paste
A judge has strongly criticised an employment tribunal (ET) that copied most of its reasons from the respondent’s witness evidence or written submissions.
Mr Justice Bourne in the Employment Appeal Tribunal said that this, and the absence of reference to the claimant’s submissions, “are such that I cannot conclude that there was a proper judicial evaluation of the essential issues”.
After a six-day hearing below, “that is a deeply regrettable state of affairs”, he went on, ordering a complete rehearing of the case before a differently constituted ET.
Win or lose, “both parties will suffer considerable prejudice from having it tried twice instead of once”, he acknowledged.
“Given the clear guidance in repeated cases against courts and tribunals simply repeating one side’s evidence or submissions without attribution and without reference to the other side’s case, it is surprising and disappointing that that error has occurred in this case,” Bourne J said.
“And both parties must have been especially disappointed to receive a judgment containing so little of the ET’s own reasoning after the six-month delay in the provision of the written reasons for the decision.”
In August 2022, Employment Judge Postle, sitting with Ms J Costley and Mr C Grant in Norwich, dismissed Sue Kemsley’s claims against Cambridgeshire County Council after she was made redundant. An application for reconsideration was dismissed in February 2023. She appealed.
After finding failings in specific findings by the ET – because of insufficient reasoning or not addressing contentions made by the claimant – Bourne J addressed the overriding submission that the ET’s decision was copied almost entirely from the respondent’s evidence and submissions.
The claimant and her counsel estimated that about 90% of it was copied, with most of the rest quoted from documents or legislation.
Bourne J said: “Although it is true that a court or tribunal is free to reproduce one party’s material where it is efficient to do so, it is very bad practice to do so without stating that that is what is being done.
“A few words such as ‘As the respondent submits, in terms with which we entirely agree…’ might suffice by way of attribution.
“But the real problem in this case is not simply the copying of material. The problem is the use of that material for such a large part of the judgment and, above all, the absence of any reference to the appellant’s case.”
The judge accepted that the judgment was “not a pure cut-and-paste”, though a very large proportion of it was “not original”.
“The various tweaks to the wording do logically suggest that the ET gave some thought to those passages before adopting them in a final form.”
But he had identified “surprising errors” in the ruling “which reduce this tribunal’s confidence in the process undertaken by the ET. Moreover, the detailed analysis of the judgment does not allay my concerns about the absence of any reference to the arguments put forward by the appellant on important issues”.
While, at first instance, Ms Kemsley represented herself, Bourne J said this was not one of those cases “where submissions drafted by litigants in person are of little or no assistance to an ET, or indeed are positively unhelpful”.
He explained: “No doubt some passages in the appellant’s closing submissions were less focused or relevant than others, but the document judged as a whole put forward arguments which it was quite wrong to ignore.”
Even if the ET had adjudged her closing submissions as not meriting a response, “it could and should have said so, with reasons”.
Leave a Comment