Labour & European Law Review Weekly Issue 438 23 September 2015
Although it is within the power of a tribunal to decide what evidence to consider, the Employment Appeal Tribunal (EAT) held in Habinteg Housing Association Ltd v Holleron that it must take all available evidence into account and ensure that it is treated equally, including hearsay evidence.
Ms Holleron worked as a community assistant for the housing association. Part of her job involved providing low level support to various tenants including one referred to as AP, who was described as having a “troubling history”. Her approach to this tenant brought her into conflict with some officers in Sefton Social Services who lodged a complaint about her. As a result, Ms Holleron was suspended pending an investigation.
Unbeknown to Ms Holleron, the manager looking into the complaints (Tracy Gaughan) interviewed AP as part of her investigation. After it had been decided that no action should be taken, Ms Holleron met AP who told her that Ms Gaughan had asked some very strange questions, some of which inferred that Ms Holleron might be physically or sexually taking advantage of her. AP also said that Ms Gaughan asked whether Ms Holleron “might bat for the other side”.
Ms Holleron brought a number of complaints against the investigating manager which were dismissed. She then brought various tribunal claims, which included one that she had been discriminated against on the ground of her perceived sexual orientation. However, the claim was lodged after the expiration of the three-month time limit for bringing claims.
Neither AP nor Ms Gaughan attended the tribunal hearing to give evidence, though the hearing bundle did contain a witness statement of Ms Gaughan and contemporaneous notes she had made of the investigation meeting with AP.
The tribunal concluded, on the balance of probabilities, that the questions that Ms Gaughan asked AP created an adverse environment for Ms Holleron. The terms in which the questions were couched clearly referred to the manager’s perception that Ms Holleron was a lesbian and that she might be taking sexual advantage of AP.
It concluded that Ms Holleron had proved primary facts from which it could draw inferences of unlawful discrimination of perceived sexual orientation. It also drew adverse inferences from the fact that Ms Gaughan had not attended the hearing and from the fact that the housing association had promised to investigate Ms Holleron’s concerns, but failed to do so.
The tribunal decided that it was just and equitable to extend the time limit to allow the claim to be heard, even though it did not hear any evidence as to why it had been submitted late.
The EAT allowed the appeal on a number of grounds. Firstly the tribunal had failed to take Ms Gaughan’s evidence into account whilst allowing itself to be influenced “illogically” by what AP was reported to have said. Secondly, it had been inconsistent in the way in which it assessed the evidence relied on by Ms Holleron.
Thirdly, it refused to accept Ms Gaughan’s witness statement (and notes of the investigation meeting) in evidence. Although tribunals are entitled to give much more weight to sworn testimony than written statements, it described the tribunal’s refusal to accept her evidence as a “draconian step”. Since the evidence from both AP and Ms Gaughan was in effect hearsay and should have been treated the same, the tribunal should either have taken Ms Gaughan’s statement into account to some extent or explain with greater clarity why it failed to do so.
Finally, the EAT held that, as Ms Holleron had failed to provide reasons for an extension of time, it was not possible for the tribunal to establish whether it was just and equitable to extend it.