His Honour Judge Auerbach said of fact finding in the Employment Tribunal in Matondo v Kingsland Nursery Ltd [ 2024] EAT 123 :
Because the comments made about witness evidence in cases such as Gestmin are observations rather than rules of law, does that mean that they can safely be ignored? It would be foolish to ignore the condensed wisdom of so many judges who have heard the evidence of so many witnesses over so many years. The observations provide guidance that can help prevent a judge making an error of law, such as failing to take account of material evidence that would, or could, have changed the outcome of the case. In a very extreme case, if for no good reason the evidence of all of the respondent's witnesses is found to be wholly credible and reliable; and that of the claimant to be of no value whatsoever, that could create an appearance of bias.
Judges who try sexual offences know that it is common for victims of such offences not to report them at the time. Again, this is an observation based on extensive experience, rather than a rule of law that no inference can ever be drawn from a failure to make a contemporaneous complaint.
Significant factual disputes should be resolved and determinations should be made on all of the relevant evidence: Re Abuse Standard of Proof [2004] 2 FLR 838 (CA) 17. However, it is not generally an error of law not to specifically refer to all of the relevant evidence: DPP Law Ltd v Greenberg [2021] IRLR 1016 .
Considerable deference should be paid to the fact finding of the first instance tribunal: British Telecommunications Plc v Sheridan [1990] IRLR 27 . In Fage UK Limited and another v Chobani Limited [2014] EWCA Civ 5 , [2014] ETMR 26 (CA) Lewison LJ warned against interference on appeal with findings of fact, and considered the requirements of a first instance decision:
In Oxford Saïd Business School v Heslop EA-2021-000268-VP Mr Justice Griffith said:
Judgments primarily set out conclusions, rather than workings, and are not necessarily set out in the same order as the decision making took place. In Edwards v Everard [2023] EAT 61 , [2023] ICR 975 EAT, I suggested:
The deference to be afforded to decision making at first instance was expressed in clear terms by the Supreme Court in Henderson v Foxworth Investments Ltd and another [2014] 1 WLR 2600 , per Lord Reed JSC:
In Pal v Accenture (UK) Ltd [2026] EAT 12 , I suggested that generalised findings on credibility are rarely a particularly useful tool for resolving specific issues of fact about which there is relevant evidence. It is best to explain how the evidence resulted in the conclusions on the key factual disputes.
Generalised statements about credibility sometimes appear to have been made as a belt and braces exercise. It is often hard to see what the generalised credibility assessment adds when there are reasoned substantive findings of fact. The risk is that may appear that the findings of fact were founded on the generalised credibility assessment, rather than consideration of all of the relevant evidence.
In Mayanja v City of Bradford Metropolitan District Council [2025] EAT 160 , one specific finding of fact, the rejection of the claimant's evince that he had been offered a job, formed the basis of a conclusion that the evidence of the respondent's witnesses was to be preferred to that of the claimant on all issues. When that specific finding of fact was found to be unreliable, because an email offering the job was discovered, the generalised conclusion on credibility, and the other findings of fact based on it, fell away.
There are occasions on which Employment Tribunals appear to have adopted a generalised credibility assessment, but have not in fact done so, having only made a generalised comments about the witness evidence. In Inland Revenue Commissioners v Millar UKEATS/0003/08/MT Elias J stated:
In Granger v Scottish Fire & Rescue Service [2025] EAT 90 , Lady Haldane adopted the approach to errors of law that can arise in respect of findings of fact set out in R (Iran) v SSHD [2005] EWCA Civ 982 , from which I shall quote a slightly longer passage than she did:
In R (Iran) v SSHD it is suggested that it is necessary to identify an error of law which would have made a material difference to the outcome. I would be inclined to say it is necessary to identify an error of law that could have made a material difference. In many cases where there is an error of law in fact finding the matter would have to be remitted to the Employment Tribunal to be determined afresh.
In the EAT Practice Direction 2024 at Section 2.5.1.d, the following is given as an example of what might be an error of law:
The term relevant should be taken to require that the matter is material, because "errors of law of which it can be said that they would have made no difference to the outcome do not matter".
Section 2.4.1.c of the EAT Practice Direction 2024 suggests it is not an error of law to "prefer the evidence of the other side".
The appeal
As developed in Mr Ogg's skeleton argument for the claimant, the main argument advanced was that set out in paragraphs 6 and 7.6 of the grounds of appeal:
In Mr Ogg's skeleton argument he put this asserted error of law in slightly different terms:
The first, and fundamental, question is whether the Employment Tribunal applied the inflexible rule as asserted by the claimant. Reading paragraph 14 by itself it might appear that the Employment Tribunal did so because it said that "Where there is a factual clash between the evidence given by the claimant and that given by the second and third respondents we prefer the evidence of the second and third respondent" and that they "made our findings of fact accordingly". I accept Mr Ogg's suggestion that generally the EAT should not go behind a statement by an Employment Tribunal of how it went about its decision making. However, reading the judgment as a whole it is clear that this is an example of the type of iterative decision making I referred to in Edwards v Everard . At paragraphs 10 to 13 the Employment Tribunal clearly stated that it took account of all of the evidence presented to it and made its findings of fact on the basis of that evidence. The Employment Tribunal referred to its finding of fact about the alleged sexual harassment at paragraph 13, stating it was "quite unbelievable that the incident about which she complains on 17 September 2021 could have happened without her making a formal complaint". On a fair reading of the judgment the overall assessment of credibility was made because of the findings of fact, rather than the findings of fact being made because of the overall assessment of credibility.
After the credibility assessment in paragraph 14 the Employment Tribunal said it "made our findings of fact accordingly". That is poorly worded and does not properly reflect the decision making process of the Employment Tribunal demonstrated by the rest of the judgment. The situation is much like that considered by Elias J in Inland Revenue Commissioners v Millar discussed above.
The finding in respect of the complaint of sexual harassment, was in the following terms:
The Employment Tribunal does not specifically refer to the evidence of Mr Sales, although he gave evidence denying the alleged sexual harassment. The Employment Tribunal did not state that it had considered the evidence of the claimant and Mr Sales and preferred Mr Sales' evidence because of its overall assessment of credibility. The finding of fact that the harassment did not occur was based on the fact that the claimant did not complain until she submitted her claim to the Employment Tribunal and, more particularly, the lack of any complaints from any of the other women who the claimant said had been present. While the lack of a contemporaneous complaint about sexual harassment may generally be understandable, the analysis of the Employment Tribunal was in the context of the claimant having submitted a grievance shortly after the alleged sexual harassment and not having mentioned it. These were factors that the Employment Tribunal was entitled to take into account.
The finding in respect of constructive unfair dismissal was in the following terms:
Again, on a proper assessment of the judgment, I consider that it is clear that the Employment Tribunal took account of the totality of the evidence in rejecting the claimant's contention that Mr Dove had behaved in a manner that constituted a fundamental breach of her contract of employment. I accept Mr Ogg's contention that while the Employment Tribunal stated "The incidents of 31 August and 7 October 2021 as described by the claimant were in our view routine workplace disputes" the Employment Tribunal must have rejected the evidence given by the claimant in her witness statement in which she asserted that Mr Dove had shouted, grabbed her sleave and sworn at her. The Employment Tribunal did not say that it had considered the evidence of Mr Dove and that of the claimant and preferred that of Mr Dove based on its overall assessment of their credibility. The main factor the Employment Tribunal relied on was the lack of any complaint about Mr Dove by colleagues of the claimant. Mr Ogg correctly refers to an exchange of texts between the claimant and a colleague, Scott Reeves, who said that he considered Mr Dove's conduct on 7 October 2021 was "disgusting", although he did not refer to any swearing, which was the claimant's main complaint. The Employment Tribunal referred to this at paragraph 18 and so can be assumed to have had it in mind. It did not constitute a complaint, not having been made to anyone other than the claimant. The Employment Tribunal was entitled to consider the lack of any complaints by the claimant's colleagues about Mr Dove's alleged conduct as significant.
Because the Employment Tribunal did not apply the inflexible rule the appeal necessarily fails. Even if the Employment Tribunal had made core findings of fact on the basis of an overall assessment of credibility, I do not consider that would have amounted to an error of law of itself, unless it resulted in some demonstrable error of law, such as a failure to take account of significant evidence on material matters that was likely to have affected the outcome of the complaints.
I will deal with the other specific grounds of appeal for the sake of completeness.
There is nothing to suggest this was an argument that was made at the Employment Tribunal. Even if it was relevant that the claimant and her colleagues were "low-paid" cleaners working in a distribution centre, that did not mean it was an error of law for the Employment Tribunal to have regard to the lack of complaints. The claimant raised a grievance so had felt able to make a complaint.
The Employment Tribunal specifically took account of the fact that the claimant does not speak English as a first language. The Employment Tribunal knew she was a litigant in person. The assessment of her evidence was a matter for the Employment Tribunal that was entitled to conclude that she had embellished her evidence. The claimant is not able to establish an error of law in this regard.
While the Employment Tribunal did not phrase itself as clearly as it might, it was entitled to take account of the fact that, despite raising a grievance, the claimant did not raise the allegation of sexual harassment.
The Employment Tribunal was entitled to rely on this as a factor in its assessment of the claimant's evidence. It was not an error of law to do so.
The Employment Tribunal clearly took account of the evidence of the claimant, otherwise there would have been no point in it stating that it preferred the evidence of Mr Dove and Mr Sales to that of the claimant.
Despite the careful and considered arguments made by Mr Ogg, I do not consider that there is any error of law in the determination of the Employment Tribunal. I am grateful to Mr Ogg and Mr Ahmed for their helpful written arguments and concise oral submissions. I am also grateful to Mr Ogg and his solicitors for acting pro bono for the claimant.