Anea v OCS UK & I Limited: credibility assessments and witness evidence in employment tribunals

The Employment Appeal Tribunal has dismissed an appeal challenging an Employment Tribunal's approach to witness credibility, clarifying that whilst generalised credibility assessments are rarely useful, tribunals retain considerable deference in fact-finding where they base conclusions on all relevant evidence.

Mrs Anea brought claims of sexual harassment, race discrimination and constructive dismissal against OCS UK & I Limited and two individual respondents. The Employment Tribunal dismissed her complaints, stating at paragraph 14 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 have made our findings of fact accordingly."

The claimant appealed, contending the tribunal had adopted an inflexible rule to prefer the respondents' evidence on all disputed matters, constituting a procedural irregularity amounting to an error of law.

The approach to witness evidence

His Honour Judge James Tayler reviewed extensive judicial guidance on assessing witness evidence, noting that whilst judges have provided valuable observations about memory's fallibility and the risks of over-reliance on demeanour, these are not immutable rules of law. Every case must turn on its own facts and the tribunal's evidence-sensitive evaluation.

The judgement emphasised that witnesses may be mistaken on some issues but correct on others, and may lie about certain matters whilst telling the truth about others. This requires tribunals to break down evidence into component parts rather than adopting wholesale acceptance or rejection of testimony.

Where witness evidence conflicts, it must be assessed against facts proved independently of testimony, including contemporaneous documentary evidence. However, there is no rule that such documents necessarily trump evidence based on recollection, as reliability of record-keeping may itself be questioned.

Reading the judgement as a whole

Applying these principles, the EAT concluded that on a fair reading of the judgement as a whole, the Employment Tribunal had not applied the inflexible rule alleged. At paragraphs 10 to 13, the tribunal clearly stated it took account of all evidence presented and made findings on that basis.

The tribunal's overall credibility assessment was made because of its findings of fact, rather than findings being made because of the credibility assessment. The judgement demonstrated an iterative decision-making process, with the poorly-worded paragraph 14 not properly reflecting the actual approach taken.

On the sexual harassment complaint, the tribunal's finding that the alleged incident of 17 September 2021 did not occur was based on the claimant's failure to mention it in her grievance shortly afterwards and, more significantly, the absence of complaints from other women allegedly present. These were factors the tribunal was entitled to consider.

Similarly, on constructive dismissal, the tribunal's conclusion that Mr Dove's conduct constituted routine workplace disputes rather than fundamental breach relied primarily on the lack of complaints from the claimant's colleagues, despite text messages from one colleague describing conduct as "disgusting." The tribunal had referred to these messages and was entitled to conclude they did not constitute a complaint to management.

Generalised credibility findings

Judge Tayler observed that generalised credibility assessments are rarely a particularly useful tool for resolving specific factual disputes. It is preferable to explain how the evidence resulted in conclusions on key factual disputes rather than making overarching credibility judgements.

Such generalised statements sometimes appear to be belt-and-braces exercises. The risk is they may create an appearance that findings were founded on the generalised assessment rather than consideration of all relevant evidence. In Mayanja v City of Bradford Metropolitan District Council, one unreliable specific finding had undermined a generalised credibility conclusion and other findings based upon it.

However, even had the tribunal made core findings based on overall credibility assessment, that would not of itself constitute an error of law unless it resulted in demonstrable error, such as failure to consider significant evidence on material matters likely to affect the outcome.

Additional grounds

The claimant's remaining grounds were rejected. The tribunal had been entitled to consider the lack of complaints from other workers, notwithstanding their position as low-paid cleaners, particularly where the claimant herself had felt able to raise a grievance. The tribunal had specifically acknowledged the claimant did not speak English as a first language and was a litigant in person, and was entitled to conclude she had embellished her evidence.

The tribunal's observation about the absence of contemporaneous documents regarding sexual harassment, whilst not ideally phrased, properly reflected that the allegation had not been raised in the grievance. Its comment that the claimant's credibility was damaged by disputing a document she had not read was a permissible factor in assessment.

Deference to first instance findings

The EAT emphasised the considerable deference to be paid to first instance fact-finding. Appellate courts should not conduct minute examination of tribunal decisions with a view to overturning findings except in relatively clear cases. The working assumption must be that a tribunal making no clear error of law has reached no impermissible conclusion of fact.

This assumption should not easily be displaced by hypercriticism of reasoning or structure. The question is not whether the decision is ideal but only whether it is good enough, with sufficient reasoning and free of demonstrable error.

The appeal was dismissed. Whilst the tribunal's wording at paragraph 14 was unfortunate, reading the judgement as a whole demonstrated proper consideration of all evidence in reaching sustainable findings of fact on the claims advanced.

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