England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Peter Clark, Ms V. Branney and Mr M. Worthington
Appeal No: UKEAT/0209/12/KN, BAILII: [2013] UKEAT 0209_12_0703

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/12/2013

Lord Justice Rimer :

1. This is a renewed application for permission to appeal. Elias LJ refused permission on the papers on 25 June 2013. The applicant is Raimonda Gaurilcikiene, a former employee of the respondent, Tesco Stores Limited. The proposed appeal is against the order of the Employment Appeal Tribunal (His Honour Judge Clark, Ms V. Branney and Mr M Worthington) dated 7 March 2013 dismissing the applicant's appeal against the judgment of the London South Employment Tribunal (Employment Judge Macinnes, Mr P. Reid and Mr G. Bluestone) dismissing her claim for race discrimination. That judgment was sent, with reasons, to the parties on 5 April 2011.
2. On 29 May 2009 a grievance letter was sent on the applicant's behalf to Tesco complaining of the way she had been treated. It was written by the law offices of Ogilvy and Ogilvy Associates, was sent to Tesco's head office at Cheshunt and was stated to have been copied by email to Ms Russell (an area personnel manager) and to Ms Byfield (a site manager at the Clifton Lee store, where the applicant worked). Tesco did not reply to the letter and the applicant asserted that its failure to do so was discriminatory on racial grounds and amounted to direct discrimination or victimisation.
3. Paragraph 21 of Tesco's ET3 admitted the raising of the grievance of 29 May, and so appeared to admit its receipt, although it said it reserved its right 'to amend these grounds on receipt of further particulars of the Claimant's claim'. Paragraph 30 denied that the applicant's grievances (she had also raised others) had not been properly investigated, and asserted that any 'failure to provide outcomes to [them] relate to the Claimant not being able to attend the meetings arranged to discuss her grievances and concerns'.
4. A pre-hearing review before Employment Judge Sage on 8 December 2009 resulted in a judgment binding on Tesco that the ET had jurisdiction to hear the applicant's race discrimination claims 'as a grievance was raised by [her] on 29 May 2009'.
5. At the substantive hearing before the Macinnes tribunal, the applicant was represented by a Mackenzie friend, Mr Michael. Tesco's stance in relation to the raising of the grievance appears by then to have changed. Paragraph 55 of the tribunal's reasons records (i) that it was Ms Byfield's evidence that she never received the grievance, and (ii) that Ms Russell's email address, to which the grievance letter had been copied, was said to have been incorrectly spelt so that it was not clear that the email could have been received by her either; and paragraph 56 recorded Tesco's concession that it had not dealt with the grievance letter, its explanation being that 'if it had received it, this was an administrative error'.
6. The Macinnes tribunal found at paragraph 68 that the applicant sent the grievance on 29 May 2009, which was a protected act, and that Tesco did not respond to it. The question was whether Tesco's lack of response to it amounted to less favourable treatment (which was said to be not seriously disputed) and, if so, whether such treatment was by reason that the applicant had done the protected act. The tribunal continued:

'69. [Tesco's] explanation was that neither Ms Byfield nor Ms Russell had received the document and it had no record of having received it at the [Tesco] registered office. If it had been received at [Tesco's] registered office then the failure to deal with it was as a result of an administrative error therefore not by reason that the Claimant had done the protected act. The Claimant was unable to prove that the document had been received at [Tesco's] registered office.

70. In these circumstances we have decided to accept [Tesco's] explanation that either it did not receive the grievance or if it did then failure to deal with it was as a result of an administrative error not by reason that the Claimant had done the protected act. …

83. In relation to the Claimant's grievance of 29 May 2009 we find that Claimant has proved that [Tesco] did effectively ignore this. [Tesco's] explanation was that it had not been received by Ms Byfield or Ms Russell. It did not know whether it had been received by [Tesco] but if it had the failure to deal with it was administrative error. We do not accept that the Claimant has proved facts from which we could conclude that the failure to deal with the grievance of 29 May 2009 was on racial grounds. In any event we find [Tesco's] explanation adequate.'

7. The applicant complains that that amounted to the acceptance by the tribunal of a new case made by Tesco for the first time at the substantive hearing to the effect that either (i) Tesco had not received the grievance at all or, (ii) if it had, its failure to deal with it was as a result of administrative error. Such a case had not been pleaded, nor advanced by Tesco to the Sage tribunal. It only emerged when Ms Byfield gave evidence. It is said that it was unfair on the part of the Macinnes tribunal not to warn the applicant's representative of the change of case so that he could consider how best to deal with it. As it is, it is said that he did not realise that the tribunal was going to accept this new case until he saw its reasons.
8. The outcome of the applicant's bid to appeal to the EAT was that only two of her several grounds of appeal were allowed to go forward to a full hearing, and only one of them is of present relevance: namely, the complaint that the handling by the tribunal of Tesco's change of case was procedurally irregular.
9. Judge Clark, in giving the judgment of the EAT, noted that Tesco had advanced no positive case in its pleadings as to what had become of the letter of 29 May, nor had it admitted receipt of it. That issue was not dealt with in its witness statements for the substantive hearing. He said, in paragraph 7, that a note from EJ Macinnes showed that it was apparent that Ms Byfield had said she had never seen the letter before looking through the trial bundle; that it was 'common ground' that it had been emailed to Ms Russell at the wrong address (which Mr Khan, who represented the applicant both before the EAT and me, disputes); and that Ms Oxley, who appeared for Tesco at the Macinnes tribunal, advanced the explanation which the tribunal accepted and that Mr Michael neither answered the new case nor objected to its being made.
10. In those circumstances, the EAT concluded there had been no serious procedural irregularity. Judge Clark added, in paragraph 10, that Tesco's earlier activity in dealing with the applicant's grievances was 'entirely consistent with [Tesco] overlooking the letter of 29 May 2009 addressed to their head office rather than to the site at which the Claimant had been employed, if it arrived, rather than to any sinister motivation.' Mr Khan criticises that statement as amounting to a finding of fact that the EAT had no business to be making.
11. Mr Khan, in support of the applicant's renewed permission application, advanced cogent arguments to the effect, as he asserted, that the Macinnes tribunal had not dealt fairly with the emergence at the substantive hearing of Tesco's explanation as to the omission to respond to the 29 May letter. He emphasised the disadvantage to Mr Michael, who is not a professional advocate, in dealing with such a late, new case. He submitted that the tribunal had not, as it should have done, drawn the fact of the change of case expressly to Mr Michael's attention so that he could take stock of how to respond to it.
12. He also emphasised the apparent inadequacies of the Macinnes findings. Paragraph 69 records that '[Tesco] had no record of having received it at the [registered office]', but does not identify upon what evidence that was based. Such a finding could only be made as a result of evidence as to what search had been made of Tesco's records, but the tribunal does not identify such evidence. The same paragraph asserts that the applicant was 'unable to prove that the document had been received at [the registered office]', yet it might also be said that, following the findings of the Sage tribunal, it had already been decided that the letter had been received by Tesco: how else could the Sage tribunal hold that the ET had 'jurisdiction to hear the … claims for race discrimination as a grievance was raised by the Claimant on 29 May 2009'?
13. Having held in paragraph 69 that the applicant had been unable to prove that the letter was received by Tesco, the Macinnes tribunal proceeded in paragraph 83 to find that 'the [applicant] has proved that [Tesco] did effectively ignore [the letter]'. How could Tesco 'effectively' (whatever that means) have ignored what the applicant had failed to prove it had received? The rest of paragraph 83 suggests, however, that the evidence adduced by Tesco did not prove that it had never received the letter, but that any oversight in dealing with it was an administrative error. What evidence supported the latter conclusion?
14. With respect to the Macinnes tribunal, their findings as to the receipt or otherwise of the letter by Tesco appear to me to be unsatisfactory. Their somewhat unsure conclusions can, I consider, be said to be insufficiently reasoned. The difficulty in the way of the applicant's path in making any headway on that front is, however, that the only permitted ground of appeal before the EAT was that of procedural irregularity, which the EAT rejected; and I do not see how it can be open to the applicant to seek to open a wider front before the Court of Appeal. Nor do the grounds of appeal seek to do so. As I read them, they are confined to procedural irregularity.
15. I have my doubts as to whether there is any sufficient mileage in the procedural irregularity point to merit the giving of permission. Mr Michael may not be a professional advocate, but he was nevertheless representing the applicant before the Macinnes tribunal, and so holding himself out as fit to do so, and he must therefore have seen what was going on at the hearing in relation to the grievance issue. There are, I consider, difficulties in the way of a complaint that it was procedurally unfair of the Macinnes tribunal not to spell out to him what was happening so as to enable him to take stock of the position. My doubts in that respect explain in part why I decided to reserve my reasons on this application. My doubts remain, but putting it at its lowest I also find myself left with a real concern as to the manner in which the Macinnes tribunal deal with the matter of the grievance of 29 May 2009. I consider that the applicant is entitled to feel considerably dissatisfied by it. In the circumstances, I consider that there is a compelling reason for the giving of permission to appeal, which is what I shall do.
16. I direct that half a day be allowed for the hearing of the appeal. The constitution shall comprise three Lords/Lady Justices, one of whom shall have experience in employment law.