United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WEST (Advocacy Manager) Peninsular Business Services Ltd Riverside New Bailey Street Manchester M3 5PB
For the Respondent	MISS K MARCHAND (the Respondent in Person)

SUMMARY

Unfair Dismissal

Unfair dismissal.

Practice and Procedure

Procedural inequality.


 


THE HONOURABLE LORD JOHNSTON

1. This is an appeal, at the instance of the Appellant employer, against a decision of the Employment Tribunal which was held at London South on 4 March 2004.
2. The background to the matter is that the Applicant employee made a complaint to the Employment Tribunal, quite legitimately, asserting unfair dismissal, apparently related to her pregnancy and its consequences. There were certain issues before the Tribunal, apparently on the basis of that and also the question of qualifying service. What is much more important, however, to note at once is that in the application to the original Tribunal, the IT1, there is no reference to sex discrimination or any claim there under.
3. It is therefore somewhat surprising to discover that the Tribunal narrates that its unanimous decision is that the Respondent was discriminated against on the grounds of her sex, contrary to the Sex Discrimination Act 1975, and automatically unfairly dismissed, contrary to her Section 99 employment rights. As this Tribunal seeks to understand that statement, it would appear to suggest that the claim succeeded, which was one apparently for injury to feelings, on the basis of sex discrimination. However, when one looks at the substance of the decision, it is apparent that the Tribunal considered the question of unfair dismissal quite separately from sex discrimination, and indeed in so far as we can see, did not make any reference to the Sex Discrimination Act 1975 anywhere in their decision, apart from in the summary at the start. Furthermore, the assertion that is made by the Tribunal as to unfair dismissal "relating to pregnancy", does not in itself give rise to any immediate reason to think that they have properly considered the issues that are raised by such a claim for unfair dismissal.
4. It has to be noted that both parties represented themselves, but it is singularly unfortunate that, for some reason not explained to us, and we offer no criticism to the parties present in that respect, the Tribunal did not defer to a wish to have a preliminary hearing asked for by the employer, which this Tribunal considers almost essential when there are unrepresented parties on both sides, to try and identify the issues, and short-circuit, and indeed perhaps prevent, what has happened in the present case.
5. With no disrespect to the Respondent in this appeal, who appeared before us but made no submissions, we are entirely convinced that this decision, however it is categorized, is contrary to the interests of justice. It is based upon a claim which the employer had no knowledge was going to be made against him, and in the context where they were required to lead at the hearing. That in itself would be enough to undermine the basis of the decision. When, however, looked at in broader terms as to the substance of this decision, it is wholly irrational and cannot stand.
6. In these unfortunate circumstances, we have no alternative but to allow this appeal, and remit the matter to a freshly constituted tribunal, for the matter to be heard de novo. It is with great regret we have to do this, but we do not consider the interests of justice dictate any other course. The appeal is allowed.