SUMMARY
UNFAIR DISMISSAL – Reason
for dismissal including substantial other reason
Claims of (1) unfair dismissal and (2) harassment on
grounds of national origins were upheld by an Employment Tribunal.
On the employers appeal, both findings were
overturned.
On the dismissal, the Tribunal had taken a point not
taken by the employee himself as to why there was no true redundancy situation.
The employers had not been given a proper opportunity to meet the wholly new
point. The question of the reason for redundancy was remitted to a different
tribunal.
The harassment claims had been presented months out of
time. The employee had advanced no reason or explanation for the delay. The
Tribunal identified in their reserved judgment a reason which could be imputed
to the employee and that they considered sufficient. The employers had had no
notice of that reason and no opportunity to deal with it. The reason was also
inconsistent with other factual findings made by the Tribunal. The only proper
way to have exercised a discretion on time in those circumstances was to have
refused to extend time.
MR RECORDER LUBA QC
Introduction
1.
This is an employer’s appeal against findings by the Employment Tribunal
at Watford that it had unfairly dismissed its employee, Mr Pino Vaio, and
that while employed Mr Vaio had been the victim of harassment in the
workplace contrary to sections 3A and 4 of the Race Relations Act 1976.
The employer, John Guest Engineering Ltd, which we shall hereafter refer to as
“the company”, manufactures fittings and piping for plumbing and other
applications. At its site at West Drayton there is a production department
generating the products, using automated production machinery, and an
automation department responsible for building, maintaining and repairing that
production equipment. Mr Vaio is a United Kingdom‑born white male
of Italian national origins. He began working for the company in 1993. By the
time he was given notice of dismissal in December 2008, he had been
working for many years in the automation department.
2.
By a complaint made to the Employment Tribunal Service in May 2009
Mr Vaio asserted that his dismissal had been unfair. His claim form
raised a number of other complaints: of race discrimination, of harassment, of
victimisation, of breach of contract, and also included claims for unpaid
monies. The Employment Tribunal (Employment Judge Southam and members) heard
evidence from the parties over some eight days and they were presented with in
excess of 1,250 pages of documents. By a Reserved Judgment promulgated on
10 August 2010 the Employment Tribunal rejected a large number of
Mr Vaio’s claims. However, it did find that, firstly, he had been
unfairly dismissed, and secondly that he had been subject to two instances of
harassment on grounds of national origin (in respect of which matters the
Employment Tribunal decided it did have jurisdiction notwithstanding that they
were prima facie presented out of time). The company appeals from those two
adverse findings. There is no appeal by Mr Vaio against the Tribunal’s
dismissal of his other claims.
The unfair dismissal claim
3.
The reason advanced by the company for Mr Vaio’s dismissal was that
he had been made redundant. The company had needed to shed posts, and it was
decided that the automation department would bear its share of those. The
automation department had 11 employees. One, a Mr Diamond, was
treated as being in a unique position and was not considered amongst those who
might be subject to redundancy. The company engaged in a selection procedure
for redundancy, which the Employment Tribunal was satisfied had been fair.
This involved both collective and individual consultation, and the individual
assessment and scoring of each employee. In the result only Mr Vaio was
selected for dismissal for redundancy from the automation department.
4.
His complaint to the Employment Tribunal, as formulated in his complaint
form, was that he had been unfairly selected for redundancy and that it was not
a genuine redundancy situation. At section 9 of that claim form he raised
issues about the unfairness of the skills matrix that had been used in the
assessment part of the selection process, he complained about not being redeployed
to a post vacated by the resignation of another employee, a
Mr Chris Lutteridge, and he asserted that he had been placed in the
wrong selection pool altogether. He later provided further and better particulars
of his complaints about his dismissal. Neither the claim form nor those
particulars raised a complaint that his redundancy had been unnecessary,
because the automation department had only needed to shed one employee in the
redundancy process and that such a reduction was being achieved by the
retirement of a Mr Grierson from that department at or about the same
time. However, the Employment Tribunal found that this projected saving of one
worker from the automation department having been achieved by
Mr Grierson’s retirement, the dismissal of Mr Vaio could not have
been by virtue of the asserted reason, redundancy. Since no other reason was
tendered, the dismissal had necessarily been unfair.
5.
It was eventually common ground before us that this point, which we will
call “the Grierson point”, had formed no part of Mr Vaio’s case as
presented in writing to the Employment Tribunal, nor was it raised in his
evidence, nor in his case as advanced at the hearing, where he was
unrepresented. Mr Medhurst tentatively suggested on behalf of
Mr Vaio that the Grierson point was raised in cross‑examination of
Ms Ayres of the company, but as an agreed note provided to us of that
cross‑examination indicates, what was simply put to Ms Ayres was an
open question as to why three identified individuals were, “removed from the
pool.” The three individuals were identified by initial: BL, CD, and DG. BL
was the relevant section manager, who had never been in the pool; CD was the
employee Mr Diamond; and DG was the employee Mr Grierson. Ms Ayres’
answer to that question had simply provided that information. This hardly
indicates that the Grierson point was any part of the case that Mr Vaio
was advancing to the Tribunal; rather, as the company suggests, the point was
taken up by the Employment Tribunal itself at the conclusion of the evidence of
Ms Ayres, who was the Human Resources Manager with overall responsibility
for the redundancy process and the procedure. Her witness statement for the
hearing had described a selection pool, “made up of nine individuals” (see
paragraph 24 of that witness statement). That of course is consistent
with the omission from the 11 workers in the automation department of both
Mr Diamond and Mr Grierson. Her written evidence had otherwise
focussed on the selection process applied to those nine; it did not deal
further with Mr Grierson at all.
6.
We have been told that when the Grierson point was raised with
Ms Ayres by the Employment Tribunal she explained that Mr Grierson
had always been treated as already excluded from the redundancy process by dint
of his pending retirement, and that the purpose of the exercise was identify
one to be made redundant from the remaining pool of nine; that is to say,
initially 11, reduced to 10 by excluding Mr Diamond, and reduced to 9 by
excluding Mr Grierson. That explanation, we were told, was bolstered by
Ms Ayres by reference to a contemporaneous table produced at the outset of
the consultation process, which is headed “Positions Affected by Department.”
We will call that “the PAD document”. The PAD document showed, for the
automation department, nine total positions and one proposed redundancy.
7.
The Employment Tribunal was not satisfied with this explanation of the
Grierson point. While it accepted that the company had established that the
requirement for the number of employees required to carry out the relevant work
had diminished, it held that it was “clear” (see paragraph 78 of the
Judgment) that the company’s wish was simply to reduce the relevant workforce from
11 to 10 rather than from 11 to 9. It said at paragraph 79:
“We are not however satisfied that the Claimant’s dismissal is
wholly or mainly attributable to that diminution. The required reduction of 11
to 10 was achieved by the retirement of Mr Grierson. We are not
satisfied, as indicated above, that the Respondent has established that the
fact of his retirement was taken into account, such that it remained necessary
for a selection exercise to be undertaken in the automation department. We
would have expected the Respondent to say something to the effect that the
required reduction was from eleven to nine, (which is incidentally
significantly more than the 10% reduction contemplated), that one member of the
department would be retiring in February 2009, that a selection was
therefore required to be made from the remaining ten and that Mr Diamond
was to be separated and treated as a unique case. There was no documentation
to that effect presented to the employees as part of the voluminous
consultation documents that the Respondent did produce.”
8.
The Employment Tribunal referred to two documents that it considered
undermined the company’s response to the Grierson point. The first in time was
the letter that Mr Vaio and others were sent on 3 November 2008
formally confirming the announcement of a redundancy situation. This stated,
in part:
“As a result of this review, the proposal is that the number of
positions within Automation is being reduced from 11 to 10, which means that we
are proposing to make 1 person redundant.”
9.
Then on 11 November 2008 the company issued a question and
answer fact‑sheet about the redundancy situation, which read, at question
10, “Why are the over 65s not being considered first for redundancy?” and the
answer provided was:
“Once again, this could be discriminatory so all at risk
employees are in the selection pool, despite their age. However, you may be
aware that the company is considering requests to continue working past
retirement on an individual basis and these have also been taken into account.”
10.
The latter, and in particular the second sentence of the latter,
implied, the Tribunal held, that Mr Grierson would be included in the
selection pool. The Employment Tribunal dealt with these documents and their
interrelationship with the PAD document at paragraph 34.58 of their
recital of findings of fact:
“We were told and accept that Mr Grierson had passed the
normal retirement age and had made a formal request to continue working after
that age. His application had been refused because of the need to make
redundancies. He was therefore due to retire and would retire in late
February 2009. There were no documents in which reference to this
impending retirement was made. Mrs Ayres did not deal with it in her witness
statement. The implication of the reply to question 10 in the question
and answer document at [427-432], contrary to Mrs Ayres’ assertion in
reply to questions from the tribunal, was that Mr Grierson would be
included in the selection pool. Despite Mr Grierson’s impending
retirement, the Respondent pressed on with the redundancy selection in the
automation department. They identified Mr Diamond as having unique skills
as a maintenance engineer and he was separated from the remainder of the group
and his job was safe. That left a group of nine, excluding Mr Grierson
and Mr Diamond and the Respondent resolved to select one from the nine in
the automation department. This emerged in a document at [422], which was not
proved before us, although we were referred to it. The exact purpose of the
document is unclear, and we were not told how it was used in the course of the
redundancy process. In that document it is said that there is one proposed
redundancy in the automation department, from a total of nine. That is
inconsistent with the evidence of the letter of 3 November [404]. When pressed
on the matter in questions from the Tribunal, Mrs Ayres sought to say that the
position regarding Mr Grierson was known and allowed for from the outset
but there was no evidence of that and we did not accept her evidence.”
11.
The grounds of appeal relating to unfair dismissal, and the submissions
in support of those grounds as advanced by Ms Belgrove orally and in
writing, amount to a root‑and‑branch challenge to the Employment
Tribunal’s approach, its reasoning and its conclusions on the unfair dismissal
issue. In summary, complaint is made under two broad headings: firstly, it is
complained that the Tribunal dealt with the matter procedurally unfairly; secondly,
it is said that they reached conclusions on the matter that were perverse. As
to procedural unfairness, Ms Belgrove submitted that the Grierson
point had formed at no time any part of Mr Vaio’s case. It had therefore
not been addressed in any evidence. The Employment Tribunal had, she
submitted, therefore been wholly wrong to implicitly criticise Ms Ayres
for not having dealt with it in her written evidence.
12.
As to perversity, Ms Belgrove submitted that when the
Grierson point was raised orally by the Employment Tribunal itself,
Ms Ayres dealt with it in further unchallenged oral evidence and her
account was corroborated by the contemporaneous PAD document, about which she
was not asked by Mr Vaio or by the Employment Tribunal. The alternative
inferences that might have been drawn and were drawn by the Employment Tribunal
from the documents of 3 and 10 November were not put to
Ms Ayres to deal with. The findings of the Employment Tribunal that there
was no evidence in support of the “11 to 9” position advanced by Ms Ayres
can only stand, it is said, if the Employment Tribunal was right to reject her
own direct evidence and the PAD document, but it gave no reasons for doing
either. Whilst Ms Belgrove accepted that the burden of establishing the
reason for dismissal rests on the employer, she submitted that on a proper
assessment of the evidence that burden was discharged, particularly having
regard to the fact that, firstly, the only other reason for dismissal in play
was that advanced by Mr Vaio (namely, discrimination) and that reason had
been rejected in terms by the Employment Tribunal, and, secondly, that the
posts vacated by Mr Grierson and by Mr Vaio’s dismissal had not been
filled. It will be seen from that short summary that there is considerable
overlap between some of the matters advanced under the perversity ground and
the procedural unfairness point.
13.
For his part, Mr Vaio seeks to uphold the Employment Tribunal’s
conclusions essentially for the reasons they gave. His case before us was ably
put by Mr Medhurst. He submits that the “11 to 9” reduction had never
been part of the company’s case. His skeleton argument took us to the
employer’s form ET3, which like the 3 November 2008 letter refers to
only one post being lost in the automation department. He focussed on the
absence of any mention by the company of the special position in relation to
Mr Grierson until the Employment Tribunal had itself pressed the matter.
He stressed that the Tribunal did provide Ms Ayres with an opportunity to
deal with the point on the Grierson retirement. He submitted that the
Employment Tribunal had weighed up the inconsistent material that it had had
before it on this issue, and it was not satisfied on that material that
redundancy, the only reason advanced, had been established as the reason for
dismissal.
Conclusions on the unfair dismissal point
14.
We are unanimously satisfied that the appeal must be allowed in respect
of the unfair dismissal finding on the first of the two grounds advanced; that
is to say, procedural unfairness. The plain fact is that the Grierson point
had never formed any part of Mr Vaio’s case in his grievances and appeals
while an employee. It found no place in his written complaint to the
Employment Tribunal. It was not mentioned when he provided further particulars
of his claim, nor is it mentioned in his lengthy witness statement. It formed
no part of his case as put to the company’s witnesses save in the very limited
respect we have already mentioned. It was therefore a wholly new point.
Mr Medhurst reminds us that Mr Vaio was unrepresented and that the
Employment Tribunal is a body with a quasi‑inquisitorial function
entitled to facilitate an unrepresented employee in making his case. All of
that is true, but this was not a difficult technical or obscure point for an
unrepresented individual to take. It would have been the simplest thing for
Mr Vaio to state in plain language that his dismissal could not have been
for redundancy because one post needed to be saved from the automation
department and that had been achieved by Mr Grierson’s retirement. That
point was taken entirely of the Tribunal’s own volition. At no point do the
Employment Tribunal appear to have invited Mr Vaio to indicate whether he
adopted it as his case, but even if that was done and he did adopt it, the
Employment Tribunal was then obliged to ensure that it gave the company a fair
and reasonable opportunity to deal with this wholly new point taken for the
first time in the hearing before it.
15.
In our judgment that was not done. The central question on the Grierson
point was whether he, Mr Grierson, had been included in the pool of those
who might be made redundant or not. That in turn would raise factual questions
about when he was expected to retire, when he applied to extend his employment
beyond retirement, and when that request was refused. Those dates and
information about them would then require mapping across onto the redundancy
process timetable, and the relevant employees of the company managing the
redundancy process could have been called to give evidence about it. None of
that material was before the Employment Tribunal. To the extent that it might
have been said, and indeed was said by Mr Medhurst, that the company had
had sufficient opportunity to deal with the point while Ms Ayres was
giving evidence, we accept Ms Belgrove’s rejoinder that such evidence was
not likely to be the most satisfactory available to the company, and indeed it
was being given “on the hoof”, to use her phraseology. Sufficient opportunity
to deal with all aspects of the new point might have been provided had the
Employment Tribunal itself put to Ms Ayres the documents it later found to
be inconsistent with her other evidence (in particular, question 10 of the
question and answer form), but such an opportunity was not provided to
Ms Ayres; she was not asked about the ambiguous answer to question 10
at all.
16.
In our judgment it was in all those circumstances quite wrong of the
Employment Tribunal to implicitly criticise Ms Ayres for failing to
address the Grierson point in her written evidence and to draw adverse
inferences from documents on which she had had no opportunity to comment. For
all those reasons we find that the Employment Tribunal’s handling of the reason
for dismissal point was procedurally unfair. In those circumstances we are
effectively saying that the company should have, and has not had, a full and
proper opportunity to develop its whole case in answer to the Grierson point.
In that light it would not be sensible for us to deal with the company’s
perversity challenge to the Employment Tribunal’s conclusion on unfair
dismissal. That would not least require us to comment on evidence that is best
left for consideration in the context of a proper trial of what has become the
Grierson issue. The proper disposal of the matter therefore in our view is
that the appeal in relation to the unfair dismissal conclusion should be
allowed, and the question of what was the reason for dismissal should be
remitted. We will hear counsel on the proper consequential orders.
The harassment findings
17.
Having correctly directed itself to the relevant statutory provisions,
the Employment Tribunal found that there had been two incidents of harassment
of Mr Vaio on grounds of national origin contrary to
sections 3A and 4 of the Race Relations Act 1976.
Both matters had taken place in June 2008. In short summary, what had
occurred was firstly that a fellow employee had altered a computer screensaver
- that superimposed the word “Italy” over the Italian flag - so that it read
“Shitaly”. This had been admitted by the employee in question. Secondly, the
Employment Tribunal was satisfied that someone had written on a whiteboard at
the workplace two derogatory messages relating to Italians. The Employment
Tribunal’s factual findings on these two matters are set out in
paragraphs 34.50 and 34.51 of their Judgment:
“34.50 We now turn to the events of June 2008. It was not
in dispute that during the course of the European Football Championships of
that year, colleagues in the automation department supporting the England
football team, and the Claimant supporting the Italian football team, placed
screensavers on the department computers displaying the St Georges Cross and
Italian flags. Nor is it in dispute that Chris Langmaid altered a screen saver
displaying the Italian flag, by writing the words “shitaly” over the flag
(because Mr Langmaid admitted it). What seemed to happen was that if an
England supporter placed a St Georges Cross in the screensaver the Claimant
would alter it to an Italian flag and vice versa. What was in dispute was
whether or not there were placed on white notice boards in the department,
words to the effect: “we hate Italians” and “Italians go home.” There was no
evidence in writing contemporaneously about the matter that was in dispute.
Mr Lovely and Mr Robinson, who both gave evidence before us, said
that they did not see such notices. We accept their evidence, but that does
not mean that such notices were not placed on the notice board.
34.51 We think on the balance of probabilities that such notices
were placed on the notice boards for short periods of time before being wiped.
We reach the view on the balance of probabilities, based on Mr Langmaid’s
admission, the comments in the Claimant’s preparation for appraisal document
signed 26 June 2008 [394-5] in which he referred to ‘having to work
with sick minded individuals who deliberately provoke and enjoy provocation’,
and on the interview with Lee Robinson as part of the Claimant’s grievance
where reference is made to this matter at [731]. Here we note that, when
Mr Robinson was questioned about racist notices and screensavers, he did
not comment about the racist notices and his answer only referred to the
screensavers. He was not pressed on the matter.”
18.
Their conclusion as to whether the whiteboard notices were in fact
written is expressed in paragraph 45. However, before dealing with the
employer’s appeal against those adverse findings it is necessary to consider
the preliminary point raised on this appeal: that the Tribunal had wrongly
dealt with the question of whether the harassment complaints had been presented
in time. That point had been taken before the Employment Tribunal by the
company, and thus the Employment Tribunal had to determine whether Mr Vaio
had ever raised these matters with the company and whether his complaint about
them was presented to the Tribunal Service in time. As to the former, it found
by a majority that they were relatively promptly raised by Mr Vaio at an
appraisal meeting in the same month as they occurred; that is to say,
June 2008. At paragraph 34.53 of their Judgment the Tribunal say:
“What was in dispute about the meeting was whether or not the
Claimant made any complaint to Mr Robinson about the racist screen saver
and racist notices on the notice boards. The tribunal concludes by a majority
that the Claimant did complain about these matters to Lee Robinson during the
course of his appraisal meeting on [25 June 2008]. ”
19.
As to the latter question (that is to say, whether the complaint to the
Employment Tribunal Service was made in time), the Employment Tribunal found
that the complaint made to it about these two matters should have been
submitted by September 2008. No grievance was even presented by
Mr Vaio in writing to his employers about these matters until
January 2009, and no complaint was made to the Employment Tribunal Service
itself until May 2009. However, having considered those matters the
Tribunal decided that it was nevertheless just and equitable in all the
circumstances to entertain the complaints made by Mr Vaio. Its reasoning
in respect of the extension of time is contained in
paragraphs 88, 89 and 90 of its Judgment:
“88. Finally we turn to the question of jurisdiction. The
discrimination which the Claimant has established occurred in June 2008.
It was an isolated act. At the time, the 2004 dispute resolution procedures
applied, and, if the Claimant had submitted a grievance about the matter within
three months of the occurrence of those events he would have been entitled to
an extension of time to present his claim to the tribunal of three months. The
grievance must be in writing. The Claimant did not submit a grievance about
that matter until January 2009. He therefore did not secure an extension
of time and the claim should have been presented by a date in
September 2008. The claim was not presented until 25 May 2009
and therefore the claim was submitted some eight months out of time.
89. The tribunal must therefore decide whether it is just and
equitable for us to consider the claim of discrimination. The Claimant did
not, in his evidence, and only impliedly, in his grievance, did he explain the
reasons for his delay but in our judgment his explanation is satisfactory. It
was clear from the wording of his letter of appeal against dismissal that he
did not wish to raise with his employers an allegation of race discrimination
whilst he was still employed. He was clearly of the view that to do so would
endanger his employment. He was perhaps unaware then of the legislation which
makes victimisation for the making of complaints about discrimination
unlawful. The Respondent is a family company, and members of the family who
are directors work in the business. The Claimant was plainly nervous about
making an allegation of race discrimination whilst he was still employed. We
consider that to be the Claimant’s reason for not making his claim sooner.
90. If the delay had been more substantial we might have
concluded that it was not just and equitable to hear the case. In fact the
Respondent investigated the matter and we can identify no prejudice to the
Respondent arising from the delay of eight months. We are conscious that it is
exceptional to allow a late claim to proceed and that the burden is on the
Claimant. It is true that he gave no explanation in his evidence as to the
reason for the delay but we take the view that we are entitled to consider all
the evidence including the documentary evidence presented at the time of the
submission of his grievance. For these reasons we consider that it is just and
equitable to hear this particular claim and we have found in his favour in that
respect.”
20.
Ms Belgrove, on behalf of the company, advances an appeal against
the Tribunal’s decision to treat the two complaints of harassment on grounds of
national origins as having been made in time. She submits that, firstly, this
matter was again coloured by procedural unfairness, and, secondly, that the
Tribunal’s exercise of discretion to extend time was substantively wrong,
indeed perverse. Her core submission on procedural fairness is that the
company only discovered the reason for the delay in the Mr Vaio’s making of the
complaint to the Employment Tribunal when it received the Reserved Judgment of
the Employment Tribunal itself. There could hardly be, we consider, a more
stark instance of procedural unfairness than a party discovering in the
Reserved Judgment of an Employment Tribunal a first mention of a point it had
had no opportunity to meet. That, says Ms Belgrove, is precisely what
happened here. The employer did not know the reason advanced by the employee
for his delay until it emerged from the Tribunal’s Judgment in the extract we
have just set out. That, she submits, was a classic case of procedural
unfairness.
21.
Mr Medhurst, for Mr Vaio, sensibly accepts that a Claimant’s
reason for being late in making a claim, or the absence of such a reason, is or
at least may be material to the exercise of discretion as to whether to extend
a time limit. He concedes that Mr Vaio’s complaints were out of time, he
concedes that no reason for them being out of time was advanced by Mr Vaio
at all, and none had been put forward by the close of his evidence. The
Tribunal, in particular at paragraph 89, appear to refer to documents from
which they felt able to deduce what the reason was, namely that, “he did not
wish to raise with his employers an allegation of race discrimination whilst he
was still employed,” but for his part Mr Medhurst has been quite unable to
identify any document which supports such reasoning or explanation.
Ms Belgrove was right to remind us that it was for the Claimant to advance
any available explanation for his delay, and he advanced none. As she pithily
put it, the Employment Tribunal appear to have “conjured up” a reason for a
Claimant who advanced none himself. We are satisfied that that analysis of
what occurred here is correct. It led at very least to procedural unfairness
to the company. Ms Belgrove submits that this is not an issue that is
right to remit to the Tribunal to redetermine because, she submits, even the
reason for delay advanced by the Tribunal itself is inconsistent with its other
findings of fact. It is to be recalled that the reason identified by the
Tribunal was a reluctance on the part of Mr Vaio to raise an allegation of
race discrimination whilst still in the employment of the company.
22.
As Ms Belgrove amply demonstrated, that finding is inconsistent with
three other matters also dealt with in the Tribunal’s Judgment. First, as we
have already recounted, the Employment Tribunal found as a fact that
Mr Vaio had complained of these matters whilst he was still an
employee, and that complaint was made to his line manager in June 2008
(see paragraph 34.53). Secondly, the Tribunal had seen and considered a
grievance that was raised in January 2009 explicitly making these points
at a time when Mr Vaio was still an employee. Furthermore, to the
extent it is suggested that the matters were not raised earlier because his
employment was considered to be in danger, it was beyond peradventure that his
employment was going to be terminated once he had received notice of dismissal
in December 2008, and thereafter he did not promptly bring his claims to
the Tribunal. We accept Ms Belgrove’s submission that those matters are
wholly inconsistent with the proposition that the genuine reason for not
bringing the claims earlier was that he did not wish to raise issues of race
discrimination whilst still in the employment of his employer. In those
circumstances the Tribunal conducted themselves unfairly in formulating for the
employee a reason that he did not himself advance without notice to the other
party, and substantively they erred in identifying the reason they did identify
because it was wholly inconsistent with their other findings.
23.
We are therefore satisfied that the Tribunal’s exercise of discretion in
relation to the extension of time to introduce the harassment points was
flawed. Moreover, in this case the delay that the Tribunal were considering
was significant; a matter of many months rather than a few days or weeks. That
delay was wholly unexplained. Mr Medhurst asserts that no prejudice was
demonstrated on the company’s part, but in our judgement the issue of prejudice
can only sensibly arise for consideration once a prima facie case for extension
of time can be made out, and here it could not be. In those circumstances the
harassment claims should in our judgment have fallen at the first hurdle, and
there was no material before the Tribunal, and certainly none before us, that
could justify the exercise of the discretion in favour of Mr Vaio in
relation to the time limit for the harassment claims. In short, on this matter
the Employment Tribunal went procedurally and substantively wrong in extending
time. Given that assessment of the time point, we need say nothing further on
the alternative case for the company that the actual findings on harassment were
wrong. Those claims on harassment simply ought not to have been entertained at
all. We will therefore allow the appeal in relation to the two harassment
findings, and, moreover, we will dismiss the two harassment claims on which the
Tribunal found for Mr Vaio.
Disposal
24.
These observations are supplementary to the Judgment we have just
delivered. We have invited submissions from both parties on how the question
of unfair dismissal should be dealt with hereafter. The first question is by
whom it should be dealt with. Ms Belgrove submits that the matter should
not properly go back to the same Tribunal because it has expressed already
opinions on the issues that would fall to be determined on remission.
Mr Medhurst submits that it should go to the same Tribunal because they
have taken a balanced approach of accepting and rejecting some parts of the
Claimant’s case. We are satisfied that this is a case that should be remitted
to a fresh Tribunal. There is substance in Ms Belgrove’s assertion that this
Tribunal have already expressed their views on the very issues that will need
remission.
25.
The question then is ‘what’ should be remitted to the new Tribunal.
Ms Belgrove submits that it should be the narrow issue of whether a reason
has been established for Mr Vaio’s dismissal. Mr Medhurst submits
that it should be the whole question of whether the dismissal was unfair. We
take the view that Ms Belgrove’s submissions are apt here in the light of
our Judgment. We will remit to the new Tribunal the question of whether the
employer has established a reason for dismissal and what that reason is. It
will be for an Employment Tribunal Judge to give such directions in relation to
case management, having had the opportunity to review our Judgment and the
earlier Judgment of the Employment Tribunal, as to the scope of the hearing
that is necessary to determine the remitted issue. We cannot prevent the
Claimant, Mr Vaio, from advancing a positive case that there are reasons
for dismissal other than those advanced by the company, but it is right to
observe that those contentions as to other reasons that touch on matters such
as discrimination, victimisation and harassment have been rejected already by a
Tribunal, and no appeal was brought against those conclusions.
