Mrs E Thompson v Onward Homes Ltd: 2408481/2021
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 2024 |
| Date | 28 July 2024 |
| Published date | 09 August 2024 |
| Court | Employment Tribunal |
| Citation | 2408481/2021 |
Case No: 2408481/2021
1
EMPLOYMENT TRIBUNALS
Claimant: Mrs E Thompson
Respondent: Onward Homes Ltd
Heard at: Manchester Employment Tribunal
On: 2 to 9 January 2024,29 April to 1 May 2024
(2, 3, 7, 28 and 29 May 2024 in Chambers)
Before: Employment Judge Eeley
Mrs C Titherington
Mrs J Williamson
Representation
Claimant: In person
Respondent: Ms L Gould, counsel
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is as follows:
1. The complaints of being subjected to detriment for making protected
disclosures are not well-founded and are dismissed.
2. The claim of unfair dismissal because of protected disclosures is not well-
founded and is dismissed.
Case No: 2408481/2021
2
REASONS
BACKGROUND
1.The claimant’s claim came before the Tribunal for a final hearing to determine
her complaints of protected disclosure detriment and dismissal arising out of
her employment with the respondent.
2.At the outset of the hearing the Tribunal agreed that the issues for
determination were as set out in the List of Issues appended as an annex to
the case management order of Employment Judge Aspinall (dated 24 April
2023.) They were to be found in the hearing bundle at pages 122-126.
3.In order to determine the issues in the case the Tribunal received written
witness statements and heard oral evidence from the following witnesses:
•The claimant, Elizabeth Thompson, formerly employed by the
respondent as a Tree Specialist;
•Ian Hulme, Environmental Services Manager for the respondent;
•George Peters, former Arboriculture Manager for the respondent;
•Andrew Brown, Director of Housing and Specialist Living for the
respondent;
•James Dean, Tree Specialist, formerly employed by the
respondent;
•Catherine Farrington, Corporate Services Director for the
respondent.
4.In addition, the Tribunal was referred to selected documents within the
agreed hearing bundle which contained 1162 pages. During the course of the
hearing the claimant produced further documents which were adduced into
evidence. We marked those as pages C1-C22. We also obtained larger,
clearer copies of pages 390-396 and 1156. We read those documents within
the hearing bundle to which we were referred by the parties.
5.The respondent provided a chronology, cast list and key reading list. The
Tribunal also had the benefit of oral closing submissions on behalf of both
parties, for which we were grateful.
Preliminary matters
6.At the outset of the final hearing the Tribunal was asked to consider some
preliminary issues which had not been resolved at the previous four case
management preliminary hearings in these proceedings.
Dr Slater’s evidence
7.The Tribunal was asked to decide whether Dr Slater’s witness evidence was
admissible and whether he should give evidence and answer questions on it
in cross examination. The claimant proposed to call Dr Slater to give
evidence. He had previously been her tutor (and tutor to some of the other
Case No: 2408481/2021
3
witnesses in the case) when she was at college training to become an
arboriculturist. The Tribunal first had to identify the type of evidence contained
within the witness statement. Was the evidence properly classed as expert
evidence, or not? Tribunal permission was required if a party wished to call
expert evidence.
8.The Tribunal considered the witness statement.Page 1 of the copy that we
had differedslightly from the rest of the document insofar as it was the
introductory section. At paragraph 1.3 the witness explained how he became
acquainted with the claimant. He commented (at paragraph 1.4) about how
she behaved as a student when he was teaching on her course. Paragraph
1.5 madevarious predictions/suppositions about the claimant’sexperience
since her studies and qualification but in essence there was nothing
objectionable about paragraphs 1.1 to 1.5. If the witness statement had
stopped there, there would have beenno difficulty with it, albeit it probably
would not have addeda great deal to the claimant's case or assistedher
particularly in these proceedings.
9.However, when the Tribunal considered paragraph 2 of the witness statement
onwards, the evidence was, in substance, expert evidence. The witness was
proffering his opinion. Whilst the word “expert” had been removed from the
witness statement, we had to look at the substance of the evidence and not
the label applied to it by the claimant. In the statement the witness proffered
his opinion and the Tribunal was being asked to give particular weight to that
opinion because of his expertise and his training. That is the essential feature
of ‘expert evidence’: the witness gives evidence which is opinion evidence
and which the Tribunal is asked to give particular weight to because of the
expertise, qualifications or professional experience of the particular witness
in question. The Tribunal is asked to conclude that this witness ‘knows what
he is talking about’ and is able to offer a useful opinion on the matters which
are in issue before the Tribunal.
10.This witness was not giving direct evidence of fact in relation to things that he
had heard, seen, read or otherwise witnessed during the course of the
relevant chronology of events in thecase (i.e. the events about which the
Tribunal had to make findings of fact.) On reading the statement, it was
apparent that it contained expert evidence. It also contained paragraphs
which reached conclusions which were properly within the decision making
remit of the Tribunal. We make no criticism of Dr Slater for that. It is tempting
for a witness to do this but it goes beyond the scope even of expert evidence.
It addresses issues such as why the respondent did what it did, whether it
was right to do so, and whether its actions had anything to do with ‘protected
disclosures.’ This usurped the decision making function of the Employment
Tribunal.
11.As the witness statement was expert evidence (if relied upon for anything
other than paragraphs 1.1 to 1.5), the claimant would need Tribunal
permission to rely on the evidence. Such permission had not been obtained
prior to the first day of the final hearing. There had been no application for
permission to rely on expert evidence in this case.
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