About this case:

• Citation:
  [2023] NICA 26
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Bernard McCloskey

The court found that although pandemic restrictions were the cause of the occupancy limits, the interests of pupil barristers shadowing the judge should not have outweighed the self-represented appellant’s interests.

Background

Jennifer Andrews, the appellant, was formerly employed by Bryson Charitable Group, the respondent, from October 2017 to June 2018. She was hired to provide maternity leave cover.

After her termination she pursued two tribunal claims. The first was a wages claim, which was ultimately dismissed in 2019. The second tribunal action was the basis for this appeal.

Initiated in 2019, the appellant’s witness statement claimed that from “day 2” as assistant director of HR with the respondent, she experienced behaviours and decisions by senior managers which caused her concern, which included issues of financial probity and disrespect for governance.

The appellant explained: “I had many staff who disclosed alleged wrongdoing by Senior managers to me, however, were too afraid for their employment to progress their complaints. I quickly began to see patterns in behaviour and operations across the Group and when directly asked by the Company Officers reported same…”

She also claimed that she was not protected or treated fairly, despite invoking a ‘Whistle Blower Policy and Procedure’.

The Tribunal’s decision

The tribunal noted that the central complaint was that her dismissal was vitiated by unlawful detriment and/or less favourable treatment. However, they found that the appellant failed to establish a prima facie or arguable case of the detriment or less favourable treatment asserted.

As a result, the respondent had no onus to provide an explanation of their behaviour, and her case was ultimately found to be a “bare, unsupported assertion”. Further, the tribunal found that the respondent’s procedure in processing and investigating the grievance had been fair.

In her notice of appeal, the appellant explained that the tribunal did not provide her with a fair hearing. She explained that they refused her request to be accompanied by a McKenzie friend; the hearing was “made a spectator event” for the benefit of law students in attendance; the appellant could not represent herself adequately, as she suffered two panic attacks during the hearing; and she was not permitted to question the respondent’s witnesses.

She asked for an accompanying person in a support role for a second time in front of the tribunal, but was denied by the presiding judge on the ground that the available seats were being occupied by the students.

The limited number of chairs was due to the pandemic restrictions at the time. The law students were pupil barristers who were shadowing the presiding judge. He averred that there was nothing inappropriate or intimidating about the students’ behaviour.

The limited seating was also the reason given for denying the appellant’s request that her witnesses remain in the tribunal room after they had finished giving their evidence.

Consideration

The court noted that the rejection of the appellant’s request that her two witnesses remain in the tribunal room upon completion of their evidence had four identifiable issues.

First, the witnesses were denied the opportunity to hear the evidence of the respondent’s witnesses, and could not comment or assist the appellant, “for example by passing a note to her or conferring with her during a recess”.

Second, the possibility of these witnesses being recalled to give further evidence, in the informal setting of a tribunal hearing where rigid procedural rules do not apply, was effectively extinguished.

Third, the court noted the “unavoidable imbalance” which resulted from the appellant’s self-representing status, while the respondent’s representation included a solicitor and counsel, as well as a witness and staff member of the respondent. In these circumstances, the court inferred that the appellant’s sense of isolation, stress, and perception of inferiority could only have been exacerbated.

Fourth, the court considered the judge’s reason for refusing the request. The convenience of individuals who had nothing whatsoever to do with the parties or the proceedings was given priority over the appellant’s interests, and in a manner which was not applied to the respondent’s witnesses or personnel in the same way.

The court ultimately found this decision was inappropriate. It impinged adversely on the appellant’s right to a fair hearing. Although the judge was seeking to assist with training pupil barristers, this should not have outweighed the interests of the unrepresented party in this case.

On the issue of the McKenzie friend, the court considered Practice Note 3/2012, which indicates that there is a presumption in favour of permitting an unrepresented litigant to have reasonable assistance from a layperson where such is sought.

Further, the court emphasised the long-standing judicial duty to provide reasons for decisions. Here, a curt refusal conveyed through a court clerk was all the appellant received.

Determination

The court could identify no indications of invention, distortion or exaggeration on the part of the appellant. They had no reason to reject the appellant’s account of events regarding her complaint of procedural unfairness.

The court also rejected the respondent’s submission that a McKenzie friend or witnesses being present during the tribunal would not have affected how the appellant would have presented her case.

The onus was on the respondent to show that the outcome would inevitably have been the same, and the court could not proceed on the basis that the appellant would not have presented her case more persuasively or adduced different evidence.

Finally, the court rejected the argument that since the appellant had presented a previous tribunal case without the assistance sought, that she should have been able to do so again here. It seemed to the court that the unsuccessful outcome for the appellant of the previous proceedings may have been a reason why she felt more nervous, and more in need of assistance, in this later hearing.

Conclusion

The appellant’s complaint of procedural unfairness was established, and therefore the appeal succeeded.

While the court declined to express any view on the merits of the appellant’s substantive claim before the tribunal, the court did order that the case be remitted for a fresh hearing before a differently constituted tribunal panel.