[2024] UKUT 449 (AAC)

The Tribunal in this case did not undertake that review. I recognise that there may be some tension between the Tribunal adopting the four stage process with the ‘critical review’ as anticipated by Ackerman-Livingstone and the authorities recognising the decision making pressures on the expert tribunal. I note that this is addressed by the EAT in Prospere, citing the Court of Appeal in Hardy & Hansons plc -v- Lax (above):

“33.

As this court has recognised in Allonby [2001] ICR 1189 and in Cadman [2005] ICR 1546, a critical evaluation is required and is required to be demonstrated in the reasoning of the tribunal. In considering whether the employment tribunal has adequately performed its duty, appellate courts must keep in mind, as did this court in Allonby and in Cadman, the respect due to the conclusions of the fact-finding tribunal and the importance of not overturning a sound decision because there are imperfections in presentation. Equally, the statutory task is such that, just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer’s attempts at justification.

34.

The power and duty of the employment tribunal to pass judgment on the employer’s attempt at justification must be accompanied by a power and duty in the appellate courts to scrutinise carefully the manner in which its decision has been reached.”

The lack of the necessary critical approach is demonstrated by the Tribunal’s conclusion that: “it is possible that [the Head Teacher] might have considered ways in which the college could work more effectively with [DJ’s mother] but objectively, his decision to require [DJ] to be withdrawn was, we find, reasonable and proportionate with the legitimate aim . . .”