GAURILCIKIENE v TESCO STORES LTD (2014) (Court of Appeal, 10 July 2014)

Sebastian Naughton successfully resisted an appeal at a full hearing before the Court of Appeal in a case identifying the limits of procedural irregularity in the employment tribunal.

The appeal was advanced on the grounds of procedurally irregularity.  The Court of Appeal found that there was no substantial injustice where a tribunal had not stopped proceedings and offered a non-qualified representative an adjournment, in circumstances where an employer’s case was said to have substantially changed over the course of a hearing, but where no objection had been raised during the witness evidence, or in closing submissions.

No procedural irregularity in an employment tribunal not expressly giving a non-qualified representative an opportunity to deal, by way of adjournment, with a change in an employer’s case where he had had the opportunity to cross-examine witnesses or to make submissions on the issue.

The appellant (G) appealed against the Employment Appeal Tribunal’s dismissal of her race discrimination claim against the respondent employer (T).

G, a Lithuanian national, had sent a grievance letter to T complaining of her manager’s behaviour. It was also emailed to a site manager and a personnel manager. T did not reply and G asserted that its failure to do so was discriminatory on racial grounds and victimisation. T admitted in its response to G’s claim that a grievance had been raised, and so appeared to admit receipt of the letter. An employment judge at a pre-hearing review dealing with jurisdiction found that G had raised a grievance. At the substantive hearing G was represented by a non-qualified representative (M). G contended that T changed its position in relation to receipt of the letter at the hearing. The site manager gave evidence that she had never received it and the personnel manager’s email address was said to have been incorrect. T conceded that, if the letter had been received at all, it had not been dealt with due to administrative error. M did not cross-examine witnesses or make submissions on the question of receipt. The tribunal accepted T’s explanation and held that the failure to deal with the letter had not been on racial grounds. G appealed on the basis that it had been unfair of the tribunal not to warn M of the change of T’s case so that he could consider how to deal with it, but the EAT found no procedural irregularity and dismissed the appeal.

G submitted that (1) the pre-hearing judge’s finding that the letter had raised a grievance implied that T had received the letter and that that was a binding finding of fact and (2) the tribunal should have raised T’s change of position with M and given him an opportunity to seek an adjournment.

HELD: (1) The pre-hearing judgment on the question of receipt of the grievance letter was not binding, expressly or by implication. That judgment had dealt with the tribunal’s jurisdiction and it had been for the tribunal to decide the issue of receipt. Further, such a finding was not relevant to the procedural irregularity point before the instant court. (2) The principles of natural justice and the right to a fair hearing had not been violated. M had legal knowledge and G had not been running her case alone with the difficulties a foreign national might face. M had an opportunity to cross-examine, but did not asked any questions in relation to non-receipt of the letter. He failed to reply to T’s submission that the letter had either not been received or had been overlooked. The tribunal did not have to give M an opportunity which he already had, and it could have expected him to have known that the pre-hearing judgment had not decided the receipt issue. Even if the pre-hearing judgment had been binding, the result would have been the same as T could have relied on the alternative finding of administrative error.

Appeal dismissed
Counsel:
For the appellant: Arfan Khan (Direct Access)
For the respondent: Sebastian Naughton

Solicitors:
For the respondent: Squire Patton Boggs (UK) LLP

16th Jul 2014