England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		10 July 2014

1. LADY JUSTICE ARDEN: This is an appeal from the order of the Employment Appeal Tribunal dated 7 March 2013 dismissing the appellant's appeal from the order of the Employment Tribunal rejecting her claim for discrimination on the grounds of race. The judgment of the Employment Tribunal was sent out with reasons to the parties on 5 April 2011. I can take the facts from the judgment of my Lord, Rimer LJ:

"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."

2. Rimer LJ observed that it was arguable that the finding which the Employment Tribunal made about the receipt or otherwise of the grievance letter of 29 May 2009 were arguably insufficiently reasoned. Any appeal to this court could only be on the grounds of procedural irregularity, as that was the only ground on which the Employment Appeal Tribunal had given permission for the hearing of an appeal by it.
3. Rimer LJ added at paragraph 15 of his judgment:

"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."

4. This is now the court hearing the full appeal in the light of the order which Rimer LJ made. On this appeal Mr Arfan Khan appears for the appellant. I will take his submissions. He contends firstly that the decision of Employment Judge Sage was expressly or by implication a binding judgment on the issue of whether the letter of 29 May 2009 had been received by Tesco. It will be recalled that the Employment Judge herself stated in her decision that the claimant had raised the grievance by this letter.
5. Mr Khan accepts that there is no express finding about receipt of the grievance by Tesco, but he submits that that must be implicit since the employment judge refers to the fact that the letter is in the respondent's bundle; that Tesco had effectively conceded the fact that it had received the grievance letter in its skeleton argument for that hearing by implication by saying that the letter was not received until 29 May and in addition Tesco's statement in its grounds of resistance (ET3) that the claimant, now the appellant, had raised the further grievance on 29 May 2009, adding that it reserved the rights to amend its grounds on the receipt of further particulars of the case against it, at the very least failed to make it clear that Tesco took issue with whether it had ever received the grievance letter.
6. I need not go further into this contention on the part of Mr Khan because Mr Sebastian Norton, who appears today for Tesco, points out that it is outside of the grounds of permission given by Rimer LJ to argue that the decision of Employment Judge Sage was binding on this point. That point, if correct, did not involve of itself any procedural irregularity. To assert that it was binding on the question of receipt amounts to saying that there was a reason why the Employment Tribunal, the Macinnes Tribunal, was precluded by issue estoppel from hearing any submissions on the question whether Tesco had received the letter. In any event he submits that the decision of Employment Judge Sage was not a binding judgment because the only issue was whether the Employment Tribunal had jurisdiction by virtue of section 32 of the Employment Act 2002 read with paragraphs 6 and 9 of schedule two to that Act, all the appellant had to show was that she had submitted her grievance in writing, giving the basis for it, and sent it to her employer. It had, of course, to be a relevant grievance for the purposes of the Race Relations Act 1976. These were the modest requirements which Employment Judge Sage found were satisfied and Mr Khan did not take issue with the point that the issue before the Sage Tribunal was that which I have just specified.
7. In my judgment it follows that it cannot be said that the decision of Employment Judge Sage was a binding judgment on this point. Indeed, it cannot be said that it was a decision on this point by implication because at paragraph 60 of the decision it specifically says that it will be for the tribunal to determine whether the grievance was submitted in time, and this can only be a reference to the fact that the Sage Tribunal was not deciding any issue about receipt of the grievance letter; that would be a matter for the Employment Tribunal. In my judgment that first contention of Mr Khan must be resisted.
8. That takes me to Mr Khan's submissions on procedural irregularity. As he rightly submitted, questions of procedure are those that relate to the process before the tribunal. He submits that there was a procedural irregularity for two reasons. The formulation of these two reasons was greatly assisted by a formulation put by my Lord, Lord Justice Clarke. The two reasons were that the Tribunal should have raised with Mr Michael the question of whether Tesco should be able to make submissions on the question of receipt, given that it had not given the appellant notice that it was going to do so in advance or complied with procedural directions given by Employment Judge Sage as to the filing of evidence. No further evidence was to be given in addition to that served in witness statements without the permission of the Tribunal. Evidence was given by Miss Byfield, one of the witnesses for Tesco, to the effect that she had not received the letter.
9. Secondly, Mr Khan submits that there was a procedural irregularity because the Tribunal should have not proceeded to accept submissions from Tesco about the inferences it should draw from the evidence about receipt without offering Mr Michael an opportunity to intervene or perhaps offering him an adjournment.
10. Mr Khan expressly does not go as far as to assert that the Tribunal should have entered into the arena in the adversarial contest between the parties. However, he submits that, in the light of the fact Tesco had failed to comply with procedural directions, the Tribunal should therefore have raised the matter with Mr Michael.
11. In support of this approach Mr Michael relies upon the striking call made by my Lord, Lewison LJ in the recent decision in Davies v Sandwell Metropolitan Police Borough Council [2013] EWCA Civ 135 for Employment Tribunals to exercise much more active control over the conduct of their proceedings. Lewison LJ calls on Employment Tribunals to "take a firm grip on the case". He says:

"The function of the Employment Tribunal is a limited one. It is to decide whether the employer acted reasonably in dismissing the employee, it is not for the ET to conduct a primary fact finding exercise, it is there to review the employer's decision. Still less is the ET there to conduct an investigation into the whole of the employee's employment history. The Employment Tribunal itself commented in this case that much of the evidence that it heard was irrelevant to the issues it had to decide. But irrelevant evidence should be decided at the case management stage and excised. It should not be allowed to clutter up a hearing and distract from the real issues. The Employment Tribunal has power to do this and should not hesitate to use it. The Employment Tribunal has power to prevent irrelevant cross-examination and again should not hesitate to exercise that power. If the parties have failed in their duty to assist the Tribunal to further the overriding objective the Employment Tribunal must itself take a firm grip on the case. To do otherwise wastes public money, prevents other cases being heard in a timely fashion and is unfair to the parties in subjecting them to increasing costs and, at least in the case of an employer, detracting from his primary concern, namely to run the business."

12. Now it is clear that Lewison LJ in that important passage is addressing those cases where there is a substantial loss of time as a result of the Employment Tribunal allowing excessive evidence or allowing excessive cross-examination. But this was not that sort of case. Nothing in Davies seems to me to bear upon the principles of natural justice, which are really what Mr Khan seeks to invoke, and in addition the principle that each party is entitled to a fair hearing.
13. I now turn to consider whether those principles were violated. I accept that, if Mr Michael had sought an adjournment or intervened, he might have been able to show that there was other evidence which should lead a court to take a less lenient view of Tesco's conduct and that his inaction had a serious consequence for the appellant in respect of this claim, because the Employment Tribunal made a finding which led to the dismissal of her claim. But the fact is that he did not ask for an adjournment. In my judgment it is going too far to say that the principles on which Mr Khan very properly relies as fundamental principles were violated in this case.
14. In consequence, in my judgment, there was no procedural irregularity for the following reasons: first, as Mr Norton points out, Mr Michael had legal knowledge and we are told, although this may not be material, that he was acting in a paid capacity on the part of the appellant. This is not a case therefore, and this is what matters, where a person from Lithuania, such as the appellant, was running her own case with all of the difficult language and cultural difficulties and would have needed some kind of further guidance as to the procedure.
15. Second, all that the Tribunal could realistically have done was give Mr Michael an opportunity to deal with the new case or to object to it or to seek an adjournment. We have seen the Employment Tribunal's notes of the hearing -- that is the Macinnes Tribunal's notes of hearing -- as far as they are relevant to this issue. Mr Michael had an opportunity to cross-examine Miss Byfield but he asked no questions about her statement that she had not received the grievance letter, Tesco's practices or anything else. He could have shown by that sort of cross-examination, depending on her answers, that her answers were not soundly based, were not reliable or should not be the basis for any inference. In addition he had the opportunity to reply to the submissions of Miss Oxley in which the Tribunal was effectively invited to draw the inference that either the grievance letter was not received or alternatively it was received but overlooked due to administrative error. Again, Mr Michael did not take up this opportunity. It follows that the Employment Tribunal did not have to give him the opportunity to intervene or ask for an adjournment because he had the opportunity to address the Tribunal and to take any point that he thought fit to take. The fact is he did not take those points.
16. In addition -- this is my third point -- it seems to me that the Tribunal could properly expect Mr Michael to know that Employment Judge Sage had not decided the issue of receipt because he had represented the claimant before that Tribunal and he must have known the limited nature of the issues with which Employment Judge Sage was concerned.
17. Finally, I want to deal with some concluding points. It was not within the terms of the limited permission granted in this case to argue that there was no evidential basis for the conclusion of the Employment Tribunal as regards receipt of the grievance letter. There was in fact some evidence from which the Employment Tribunal could draw inferences, as my Lord, Barling J helpfully pointed out in argument, because Miss Byfield, to whom the letter was copied, said that she did not receive it and because the address given for Miss Russell, who was also a copy recipient with an email address, was not correct. The question whether the Employment Tribunal was right to draw any inference in these circumstances was not a question of procedure or process, as Mr Khan put it, but of the substantive findings of the Tribunal, and therefore I need not deal with Mr Khan's argument about this point. On this basis also Mr Khan's submissions based on the case of Launahurst Ltd v Larner [2010] EWCA Civ 334 about the absence of evidence to support findings, or the case of Komeng v Metropolitan Borough Council [2011] UKEAT/0592/10/SM about the caution which an Employment Tribunal must exercise before drawing any inference, do not arise.
18. It may be some consolation to the disappointed appellant in this case and her legal advisers if I point out that in any event there was an alternative finding of the Employment Tribunal that there was an administrative error. The Employment Tribunal did not decide this case simply on the basis of non-receipt. It means that, if there had been a binding judgment by Employment Judge Sage about receipt of the grievance letter, that fact would not have led to any different result on the appeal; Tesco would have been able to rely upon the alternative finding to show that there was no substantial injustice in this case.
19. For these reasons I would dismiss this appeal.
20. LORD JUSTICE CHRISTOPHER CLARKE: I agree.
21. MR JUSTICE BARLING: I also agree.