United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0315/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 At the Tribunal

On 1 December 2010

Before

HIS HONOUR JUDGE McMULLEN QC

MS G MILLS CBE

MR J R RIVERS CBE

MR L WOJNAROWICZ APPELLANT

MOTO HOSPITALITY LTD RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY

APPEARANCES

SUMMARY

JURISDICTIONAL POINTS – 2002 Act and pre-action requirements

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

It was conceded at the appeal that the Claimant had not submitted a grievance on sexual harassment.  But he sought to argue that his reason for not doing so was a threat contrary to Regulation 11(3).  The EAT refused him permission to raise this new point: CELTEC applied.  Even if it were allowed, the point had no prospect of success in the light of the Claimant having raised matters said to constitute the “threat”.

HIS HONOUR JUDGE McMULLEN QC

1.            This case concerns one short point relating to regulation 11 of the Employment Act 2002 (Dispute Resolution) Regulations 2004.  The case has been refined very substantially by previous Judges of this court.  We will refer to the parties as the Claimant and the Respondent.

Introduction

2.            It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Kearsley sitting over six days at Birmingham, registered with Reasons on 21 October 2009.  Many claims were raised by the Claimant, all of which were dismissed.  The Claimant sought to appeal.

3.            At the sift, HHJ Peter Clark formed the opinion that there was no reasonable basis for an appeal in any of the grounds which he raised.  Judge Clark said this:

“Some difficulty arose in determining the issues in this case.  However, they were resolved at the final hearing.  In the absence of any sex discrimination/harassment grievance (Reasons paragraph 8) those claims were not judiciable.

Appeals to the EAT are confined to questions of law.  None are raised in the grounds of appeal.  The Appellant caused his own downfall by his behaviour.  To liken Moto employees to Nazis for the purpose of withholding respect (see paragraph 12, grounds of appeal) seems to me to illustrate that point.”

4.            The Claimant exercised his right to have a hearing and came before HHJ Reid QC.  There he had the distinct advantage to be represented by counsel, Ms Emma Smith, giving her services under ELAA Scheme.  He had previously been acting for himself through an interpreter in Polish; the Respondent having been represented by counsel.  The hearing before HHJ Reid QC culminated in a written judgement.  In accordance with the overriding objective we see no reason to dilate further upon this.

5.            It is, however, to be noted that Judge Reid thought he was conducting a preliminary hearing when he was conducting a rule 3(10) hearing and considering an application for permission to appeal when in fact he was considering a fresh application in open court from the opinion of Judge Clark.  Since the Claimant has not appealed against any part of the judgment it is plain that the reasons for Judge Reid’s decision were sufficiently given to the parties.  We focus, therefore, on one single issue in this case as identified by Judge Clark, which is whether or not a grievance in relation to sexual harassment was submitted.

6.            One aspect of the appeal allowed to go forward to a preliminary hearing by Judge Reid was whether a live issue arose on this point at the Employment Tribunal.  It is conceded in the written submissions, which the Respondent has put in pursuant to the direction of Judge Reid that there was.  Mr Daniel Matovu of counsel, today also giving his services under the ELAA Scheme, has conceded that there was no grievance upon this.  Not only that but the Claimant himself has presented a skeleton argument and has also presented a written three‑page speech to us. In order to relieve him of the difficulty of language which he faces we have read most carefully this speech, his skeleton argument, the skeleton argument produced by Ms Smith on his behalf before Judge Reid and listened most carefully to the argument of Mr Matovu.  That should be an end to the appeal.

The new issue

7.            A single proposition is sought to be argued under regulation 11(3), which provides as follows:

“General circumstances in which the statutory procedures do not apply or are treated as being complied with

11. (1) Where the circumstances specified in paragraph (3) apply and in consequence the employer or employee does not commence the procedure that would otherwise be the applicable statutory procedure (by complying with paragraph 1, 4, 6 or 9 of Schedule 2), the procedure does not apply.

(2) Where the applicable statutory procedure has been commenced, but the circumstances specified in paragraph (3) apply and in consequence a party does not comply with a subsequent requirement of the procedure, the parties shall be treated as having complied with the procedure.

(3) The circumstances referred to in paragraph (1) and (2) are that -

(a) the party has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to himself, his property, any other person or the property of any other person;

(b) the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to further harassment; or

(c) it is not practicable for the party to commence the procedure or comply with the subsequent requirement within a reasonable period.

[…]”

8.            What the Claimant says is that he did not put in a grievance in relation to sexual harassment because he had reasonable grounds to believe that there would be a significant threat to himself, his property or his person or that he had been so subjected. 

9.            The first thing to note is that this issue does not appear to have been raised before the Employment Tribunal.  It would be very difficult for permission to be given for this issue to be raised now; it plainly requires some new findings of fact.  The general rule in this court is that new points of law will rarely be allowed, particularly if they require further findings of fact by the Employment Tribunal (see my judgment in Leicestershire County Council v Unison [2005] IRLR 920 approved by the Court of Appeal and upheld by the House of Lords in CELTEC Ltd v Astley & Ors [2006] UKHL 29).  We do not see this as an exceptional case and refuse to allow it to be raised.  Nevertheless, for the purpose of today and because the matter has caused such anxious consideration in the breast of the Claimant, we have been prepared to listen to him and his counsel on this point.

10.         The documents the Claimant would rely upon are featured at pages 65 and 66 of the bundle.  Page 65, dated 6 March 2008, is accepted to be a grievance.  In it there is a reference to an SMS in which the words “does your teeth have a demand on hit?”  It is necessary to read the whole of this message to understand the context but the gist is complaints about women indicating that they are dangerous.  This is said to be the threat which forms the factual basis for the submission under regulation 11(3).  Page 66 is a document sent by Mr Gorczyński to the Claimant on 16 March 2008 in which he apologises for that text message and that it was a joke.

11.         It is said that this constitutes compliance with the regulations inasmuch as there is a threat or a perceived threat.  With respect to the Claimant and to the arguments raised on his behalf, this argument can stand no chance of success.  The Claimant accepts that he raised a grievance and had no difficulty in putting forward the words in the SMS.  In our judgment the Claimant, having raised matters, could not possibly be said to have reasonable grounds for considering that there was a significant threat to himself.  It is indicated that Mr Gorczyński broke his phone but in the context of the apology and the joke expressed by Mr Gorczyński we consider that this point would have no prospect of success.

12.         So, for those reasons the one remaining point in this appeal sent to a preliminary hearing by Judge Reid is dismissed.  We would very much like to thank, again, Mr Matovu for giving his services under the ELAA Scheme; it has been valuable assistance to the Claimant no doubt.  He will, we hope, gain some solace from the fact that everything that could be said on his behalf has been said by two experienced counsel giving their time for free.