[2025] UKUT 225 (AAC)

During the hearing, we observed that AA often responded to a question with “Yes” or “Ok” but that he did not actually agree with the underlying statement suggested by the question. His next, or subsequent answer, would then confirm that AA did not agree with the underlying statement or assertion being put to him. We assessed these initial responses by AA as agreeing that a question had been put (or that it was what his employer had put to him) rather than indicating AA agreed that the factual assertion behind it was correct.

We assessed AA was doing his best to answer the questions asked. However, we considered that AA did not always understand when he was being asked whether he considered something was correct or accurate. We assessed that in order to understand what AA’s position was, it was necessary to ask follow up questions, which produced the contrary answer (“No”) when AA was asked if he agreed with the factual assertion, compared with earlier questions where he had previously said “Yes” or “Ok”.

Examples included an exchange with Mr Webster about whether AA had been told that JL had a rash. Mr Webster highlighted that AA appeared to have contradicted his oral evidence that he had not been told about a rash. This occurred when Mr Webster took AA to an entry from the disciplinary hearing dated 28 January 2022 (on page 163 of the DBS bundle). The entry stated: “Staff height lighted [sic] a rash in the groin area, did staff reported [sic] this to you?”. AA’s reply to Mr Webster was: “yes, oh, ok, yes”. Mr Webster probed further by stating “You said to the tribunal today, clearly, a second time, nobody told me about any rash, that was your evidence today but according to this you told your employer staff did report a rash to you?”. AA replied: “Not a mention of a rash at all, it was the spots”.

Upper Tribunal Judge Butler then followed up to clarify AA’s evidence in the following way:

Another example was a series of questions about whether AA’s position was that JL had ringworm on her leg, and what that meant. There were recorded references in AA’s disciplinary hearing minutes to him saying that JL had ringworm around her leg. AA agreed with Mr Webster when it was put to him that the ringworm was on JL’s leg. However, when this was probed with AA during the hearing, he explained that he did not himself see the ringworm. AA explained that he saw a photograph or photographs of spots on JL’s skin, which were too close up to identify where precisely, but he was told were on her leg. He was unable to say which part of the leg they indicated.

We do not criticise AA for the initial answers he gave during the oral hearing. Our assessment was that AA did not really understand his initial answers were being taken to agree to the factual statement within the question he was being asked. We considered this relevant to our assessment of the evidence overall, because it indicated the need to pin down AA’s initial answers and to explore them in order to fully understand them.

In particular, we considered it relevant when assessing what was recorded in the investigation meeting minutes on 08 November 2021 and the disciplinary hearing minutes dated 28 January 2022. Those minutes were recorded as not being verbatim. AA told us that he disagreed with what was recorded in them. We observe that a number of the answers the minutes recorded for AA are ones saying “Yes” or “ok”. In our assessment, it was not effective for AA’s former employer to rely on answers from AA without checking that he had understood their question and that they had understood his answer. z

In paragraph 55 of DBS v RI, Males LJ observed that where an appellant gives oral evidence before the Upper Tribunal

“…the evidence before the Upper Tribunal is necessarily different from that which was before the DBS for a paper-based decision. Even if the appellant can do no more than repeat the account which they have already given in written representations, the fact that they submit to cross-examination, which may go well or badly, necessarily means that the Upper Tribunal has to assess the quality of that evidence in a way which did not arise before the DBS.”

Our assessment is that there was a stronger and more credible quality to AA’s oral evidence than in the written minutes of the investigation meetings, the disciplinary hearing and the appeal meeting. The reason for this was that we have an accurate record of what was said at the hearing (from the audio record of proceedings) and counsel, and the Tribunal members, were able to probe what AA meant with his response. This highlighted and clarified a substantial number of answers that AA had given.

We therefore decided greater weight could, and should, be applied to AA’s oral evidence at the hearing on 27 February 2025 than what his employer had recorded as his position in the various minutes. The minutes were not verbatim, and the structure of the questions and answers indicates that when answers were recorded as given, they were not probed further. We therefore preferred AA’s oral evidence to what his former employer had recorded as AA’s position.