This was an appeal against a decision by a Fair Employment Tribunal dismissing a claim for discrimination on the grounds of political opinion. The appellant worked as a programme manager for the respondent providing services to adult homeless. In 2006 the claimant had brought a claim for sexual discrimination after being suspended and ultimately dismissed. While his claim for unfair dismissal was upheld, the claim for discrimination on the grounds of political opinion was rejected.

The Court of Appeal previously allowed an appeal on this point and remitted the matter to a fresh Tribunal. The focus of the new Tribunal was on whether the appellant suffered a detriment and whether an effective cause was the appellant's trade union beliefs.

The Court of Appeal in the present decision agreed that the new Tribunal had made an error in identifying the misconduct which the original Tribunal found the respondent could properly consider. In other words, the original tribunal had found some of the respondent’s witnesses “less than impressive” and the appellant argued this has failed to be considered. However, it held that this error did not go to the main issue which the Tribunal had to address which was the state of mind of the senior management at the disciplinary and grievance hearings. The appeal was dismissed.

Practical Lessons

This was a case in which the Court of Appeal had already decided that there was “no credible evidence” of discrimination based on the appellant’s political opinion. However, it was appropriate for a fresh Tribunal to reconsider the matter as it was not clear what facts had been found and what were rejected as not being credible.

Even though the Court of Appeal accepted the new Tribunal erred in its approach, this was not crucial to the issue they had to consider and thus it had properly directed itself. Looking even more closely, the evidence of a manager, ‘Mr Crossan’, was key as the original tribunal found him ‘overzealous and lacked objectivity’ yet the newly constituted Tribunal considered him ‘genuine and honest in his evidence’.

The new Tribunal was required to examine what he believed about the appellant (i.e. in relation to political opinion) rather than what he could prove (i.e. to justify the original dismissal). When considering an appeal in such circumstances it is important to carefully consider the difference between the two.
http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2017/%5B2017%5D%20NICA%2033/MOR10334Final%20-%20Approved.pdf