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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Konarzewska v Laurie Moran Arthur (Solicitors) [2004] EWCA Civ 452 (06 February 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/452.html Cite as: [2004] EWCA Civ 452 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand London, WC2 |
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B e f o r e :
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MARZENA KONARZEWSKA | Appellant/Applicant | |
-v- | ||
LAURIE MORAN ARTHUR (SOLICITORS) | Respondent/Respondent |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented
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Crown Copyright ©
"She said she was not in the office at all that day. However she produced a handwritten note which stated 'leaving office 11.15. Arriving 1.45pm meeting 2pm-3pm'. So in fact she was at the office first thing."
"the finding at (G) on page 4 is perverse as it is based on a misunderstanding or mischaracterization of the Appellant's evidence. At no point did she say she was not in the office all that day [26th September]. Her evidence was in her statement at #23 'On the morning of 26th September which was a Tuesday he had not arrived before I left to go to an all day meeting in Enfield. I did not return to the office.' The Appellant produced a note 'leaving office 11.15'. The Tribunal put much weight on this evidence as it appears to them the Appellant contradicted herself. In fact the evidence does not do so. As the issue over whether the meeting took place that morning is fundamental and a negative inference is drawn, it is submitted that this inaccurate finding also gives rise to unfairness."
"4. I have pointed out that obvious error, and the Tribunal's dismissal of the claim for unfair dismissal on the ground of unfair selection for redundancy on that basis. It seems to us plain that this matter has to go for a Full Hearing. What is far less clear to us is what will happen at that Full Hearing. The Tribunal below made in all other respects what appear to us to be careful findings of fact. There is one particular matter which is challenged and which I will have to revert to but it may well be that at a Full Hearing the Tribunal which hears the matter will take the view that in view of the other findings of fact it would have been inevitable that the claim for unfair dismissal on the ground of unfair selection for redundancy would fail and that therefore the appeal should be dismissed rather than the matter being sent back. That is not a matter for us."
And then, later:
"7. The one ground that will therefore go forward arises out of the error of fact as to the length of her employment. We think it is also desirable that the Tribunal should have the notes of evidence of the Employment Tribunal, because a considerable play was made over the question of whether or not the Tribunal had misunderstood, or misrecorded, or misheard evidence that the Applicant gave as to whether or not she attended at the employer's premises for the meeting on 26 September. In paragraph 4(G) of their Extended Reasons the Tribunal appear to be taking a substantial point on what it perceived as being a change in her evidence, or inaccuracy in her evidence, where they say this:
'The Applicant strongly denied any meeting on 26 September. She said she was not in the office at all that day. However she produced a handwritten note which stated "leaving office 11.15. Arriving 1.45pm meeting 2pm-3pm". So in fact she was at the office first thing.'
Given that there is an issue as to one of the matters which the Tribunal appear to have relied on and given the possibility that the Employment Appeal Tribunal on considering a Full Appeal may well consider that the appeal should be dismissed on the basis that despite the error in the final paragraph the decision would inevitably have been the same, we think it only right that it should have the Chairman's note of evidence so that each side can make what they will of any further suggested errors or differences between the note of evidence and the findings of fact which might have some effect on whether the Appeal Tribunal decides the case there and then, or whether the Appeal Tribunal decides the matter must go back for a fresh hearing before a different Tribunal."
"7. Judge Reid's EAT was obviously in some doubt about what would happen at the full hearing, but there is no doubt that they were allowing forward only the unfair dismissal claim which would be allowed if the evidence was that the Applicant had the 12 months service required to make a claim of unfair dismissal. Thus, with considerable reluctance, as the Judge put it, the case was allowed to go forward on that one point.
8. The Order which was perfected requires careful attention, for it says as follows:
'... the Appeal be allowed to proceed to a full hearing solely on the length of employment point and the attendance at the office on the 26th day of September 2000 point in accordance with the Judgment of the Employment Appeal Tribunal."
Judge McMullen then proceeded to refer to the review in the Employment Tribunal, and thereafter said this:
"11. At a hearing for directions I have no jurisdiction except to give directions for the further conduct of the hearing. It seems to me it would be an abuse to allow this case to continue to the EAT, for the sole issue which was allowed to go forward has now been resolved by the Employment Tribunal itself in favour of the Applicant. No question arises about the correctness of that decision or the level of compensation awarded. The Applicant is thus the beneficiary of a decision by the Tribunal that she was unfairly dismissed and compensation was awarded.
12. There is simply nothing left from Judge Reid's order to go forward to a full hearing and, therefore, I will, as sought by the Respondent, decide that the case should be taken no further and is dismissed on the grounds that I have set out above and that it is academic."
"11. It is quite clear in my view, when one reads paragraph 7 in its entirety [that is paragraph 7 of the November 2001 decision], that this part of the Employment Appeal Tribunal's decision was not directed towards the sex discrimination claim. It was intended to enable the Employment Appeal Tribunal at the full appeal hearing to decide whether or not the error as to the length of service actually affected the result on the unfair dismissal claim. That is what the Employment Appeal Tribunal said at page 4C-D of its judgment. It is reinforced by its subsequent reference to whether the Appeal Tribunal would decide the case there and then or would send it back for a fresh hearing. It was not opening up for debate the issue of the sex discrimination claim.
12. It follows that the only claim which was to be the subject of the full appeal was the unfair dismissal claim. That is what the employment tribunal in its subsequent review hearing dealt with in favour of the applicant. There was therefore nothing outstanding to be considered on that claim by the full Employment Appeal Tribunal at any appeal hearing. Therefore, Judge McMullen was entirely right in his decision."
ORDER: Application for permission to appeal granted.