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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Benjamin-Cole v Great Ormond Street Hospital for Sick Children NHS Trust [2010] UKEAT 0356_09_0501 (5 January 2010) URL: http://www.bailii.org/uk/cases/UKEAT/2010/0356_09_0501.html Cite as: [2010] UKEAT 0356_09_0501, [2010] UKEAT 356_9_501

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APPEARANCES

 

For the Appellant	MR A ELESINNLA (of Counsel) Instructed by: Lyons Davidson Solicitors Park House 87 Burlington Road New Malden Surrey KT3 4QP
For the Respondent	MR M SETHI (of Counsel) Instructed by: Beachcroft LLP Solicitors Portwall Place Portwall Lane Bristol BS99 7UD


 


SUMMARY

JURISDICTIONAL POINTS

EXTENSION OF TIME: JUST AND EQUITABLE

A claim form alleging victimisation/discrimination on the grounds of race was lodged 4 hours and 20 minutes out of time by an unqualified representative.

The Employment Tribunal refuses to extend time, largely on the basis of the default of the Representative.

HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal by the Claimant from a Decision of the Employment Tribunal London (Central), Employment Judge Pontac (sitting alone) dated 8 April 2009, her written Reasons are dated 16 April 2009. She held that she had no jurisdiction to consider the Claimant's complaints of either unfair dismissal or victimisation contrary to section 2 of the Race Relations Act 1976.
2. The appeal relates to issues of victimisation only. HHJ Reid QC disposed of this appeal under Rule 3.7 but an application was made under Rule 3.10 to HHJ Pugsley and this succeeded, and HHJ Pugsley directed on 7 April that there should be a full hearing of this appeal. I note that, somewhat unusually, at the hearing before Employment Judge Pontac, the Claimant did not give evidence but her legal representative, Mr Ibekwe, did.

The Facts

3. I will now set out something of the factual background to these proceedings. The Claimant, who is, I believe, of African ethnicity, commenced employment with the Respondent, the well known children's hospital, as an Administration Manager in its International and Private Patient Unit on 30 August 2006.
4. In the early part of 2008 the Respondent announced a restructuring of its non-clinical staff in the International and Private Patient Unit. The proposals would have led to the Claimant's role being deleted. The Claimant was in due course, on, I believe, 17 June 2008, placed on the Respondent's eight-week redeployment programme. The Claimant asserts, and this appears to have been accepted by the Respondent, that it failed to ring-fence suitable alternative positions for persons on the redeployment programme, as it was obliged to do.
5. On 11 August 2008 the Claimant consulted Mr Ibekwe, who was a volunteer employment adviser at the Brighton & Hove Race Equality Project. He advised the Claimant that her time for presenting a claim would expire at midnight on 28 November 2009. The Brighton & Hove Race Equality Project is a charity, a voluntary organisation with most limited resources. Mr Ibekwe has a full-time job but the Employment Tribunal found that he had training and long and extensive experience in employment law. I was also told that he is a lay member of Employment Tribunals.
6. On 28 August 2008 the Claimant was interviewed for one alternative post but she was not appointed to it. Her employment was terminated as from 29 August 2008 and that date, that is, 29 August 2008, is the effective date of determination of her contract. She appealed against her dismissal and the appeal hearing took place on 28 October 2008. The panel was satisfied that the Respondent had failed to ring-fence suitable alternative posts, so although her appeal was dismissed, she was offered a further eight-week redeployment period.
7. On 29 October 2008 a letter was sent confirming the result of the appeal, but making clear that the effective date of determination remained 29 August. Mr Ibekwe had sought to argue, and indeed gave evidence before the Employment Tribunal, that he believed the effect of this letter was that the Claimant's employment relationship recommenced (see paragraph 7 and 9 of the Decision of the Employment Tribunal). The fact that the Respondent considered that the employment had terminated on 29 August was made clear in a further letter to Mr Ibekwe dated 5 November 2008.
8. On 10 November 2008 Mr Ibekwe presented a claim form alleging direct discrimination by reason of the redundancy process. At no time has he given any explanation (save that he believed that the employment had recommenced as a result of the redeployment), as to why in that claim he did not include the claims for unfair dismissal and victimisation (see paragraph E13 of the Decision of the Employment Tribunal).
9. On 11 November 2008 Mr Ibekwe wrote to the Claimant in relation to these matters and informed her that she had no further right of appeal. It is important to note that, as at 11 November, Mr Ibekwe was now certain there was no ambiguity regarding the date of termination of the Claimant's employment. He had 17 days to present the Claimant's ET1 in respect of her unfair dismissal claim. In so far, say the Employment Tribunal, as he believed time was extended by Regulation 15 of the Dispute Regulations in respect of the victimisation claims, it appears that he believed he had three further months to present those claims. In any event, when cross-examined about his actions, he initially said there was no rush as he had until 28 November but, when pressed, withdrew what he said on the ground it had been taken out of context and he relied on the subsequent events to which I shall now turn.
10. On a date which is not altogether clear (it would seem to be on 15 November) Mr Ibekwe learned that his younger sister in Nigeria was seriously ill. He told the Employment Tribunal that he was extremely distressed at the news relating to his sister. He began to make plans to travel to Nigeria and, to put the matter roundly, his mind was not on his cases. He claimed he was unable to focus, eat or sleep. Nonetheless, on 24 November 2008, Mr Ibekwe attended the first day of a five-day hearing and applied for, and was granted, an adjournment on the grounds of his personal situation. He also telephoned to secure the adjournment of another case that had been fixed for 2 December. His sister passed away on 25 November 2008.
11. The Claimant, for the week prior to 28 November, on the findings of the Employment Tribunal, had attempted to speak to Mr Ibekwe, who apparently was staying at his aunt's in East London. She was unwilling to press Mr Ibekwe too much because she knew of his circumstances but she was eventually able to speak to him and she said that she was concerned that time would run out the following day. Mr Ibekwe confirmed that this was so and time would expire at midnight that night. We do not know what time this telephone conversation took place, it was clearly on a Friday afternoon, and Mr Ibekwe seems to have immediately decided to return to Brighton and to complete the ET1 which the Employment Tribunal found he had been working on. He is clearly diligent in that he worked through the night and the claim was presented at 04.16am. The claim alleged victimisation and unfair dismissal, as I mentioned. The claim was therefore lodged 4 hours and 16 minutes out of time.
12. On 6 December 2008 I am told that a third claim form was lodged but I know nothing about the subsequent history of that claim, nor do I know anything about the subsequent history of the claim that had been presented by him in early November.
13. The Employment Tribunal set out the facts as I have referred to them. I think it is also perhaps helpful to refer to paragraph 15, where the Employment Tribunal found that there was no one at the Brighton & Hove Race Equality Project to whom Mr Ibekwe could pass the Claimant's case. He asserted that the Claimant could not do it, but offered no explanation of his opinion, and the Claimant did not give evidence. He would not accept, even when pressed, that he or she could have presented a protective ET1 with only an outline of the claims; he insisted that the Tribunal would have inevitably have rejected or even struck out the complaints for lack of particulars in those circumstances, but that was not the case and given his training and experience the Tribunal would have expected him to know better. He did accept, however, that there was a certain amount of overlap between the first and second ET1, especially in respect of background events as the drafting of the second ET1 did not involve starting wholly afresh. It is not suggested, and there was no evidence, that at any time Mr Ibekwe asked the Claimant to prepare or lodge an ET1 herself.
14. The Employment Tribunal, when considering the application to extend time, both in relation to the claim for unfair dismissal and in relation to the claim for victimisation, directed itself as to the relevant statutory provisions, section 111 of the Employment Rights Act 1996, section 68(6) of the Race Relations Act 1976 and in addition to a number of cases which are fairly well known in relation to applications to extend time, in particular I refer to Robertson v Bexley Community Centre [2003] IRLR 434 and British Coal v Keeble [1997] IRLR 336.
15. The Employment Tribunal firstly considered the position under the Employment Rights Act 1996 and correctly directed itself that it was for the Claimant to show that it was not reasonably practicable to present her complaints in time. The Employment Tribunal took the following into account. Firstly, the Claimant had known since June 2008 that if she was not engaged in another post her employment would end in August. She took advice from Mr Ibekwe before her dismissal and immediately following the dismissal she knew, because Mr Ibekwe advised her of it, that the time limit for presentation of her unfair dismissal claim was midnight on 28 November 2008.
16. The Employment Judge noted that, were an adviser to leave until the last minute the presentation of the claim, he or she would inevitably risk being made late by intervening events, and she agreed with Counsel for the Respondent that the evidence indicated that Mr Ibekwe and the Claimant considered midnight, 28 November was a target rather than time after which the Tribunal was unlikely to have jurisdiction to hear the complaints. It is by no means clear what the basis was for saying that the Claimant considered that that date was a target and, if she did, it can only have been on the basis of advice that she would have received from Mr Ibekwe.
17. The Employment Tribunal also noted that, where an adviser took on employment proceedings, he had to ensure compliance or have in place a system for ensuring proceedings were presented in time (certainly a better system than Mr Ibekwe had) and they needed to make provision for the ordinary risks of life, one of those must include the sudden illness of a loved one and traffic delays. Mr Ibekwe made no provision for any risks, even in circumstances where it was plain he was overstretched and even when he knew his sister was ill. Even on his account he was certain no later than 11 November that the Claimant was dismissed, but he had no explanation why he did not present the ET1 between then and 15 November, when he learned of his sister's illness. Mr Ibekwe was not incapacitated from presenting the ET1 in time but was able to attend the hearing on 24 November to apply for a postponement and was able to arrange another postponement over the telephone, able to draft and present the ET1 in three hours following his arrival home on 29 November. The Employment Judge took into account he had only to produce a final draft.
18. The Employment Tribunal said that Mr Ibekwe told the Claimant what the time limit was although on Mr Ibekwe's account she was mistaken about it. Furthermore, she knew something of the process because she had presented a previous ET1. I ascertained during the course of the hearing that the ET1 which is referred to there is not an ET1 that had been issued by the Claimant herself but was an application that I have already referred to, issued by Mr Ibekwe on 10 November 2008. I find it difficult to see how the Claimant could be regarded as learning something about the process, because Mr Ibekwe had previously issued an ET1 on her behalf.
19. The Employment Judge said it was not a reasonable mistake in the circumstances and her mistake, that is, the Claimant's mistake, cannot have made it impractical for her to present her ET1 on time. Mr Ibekwe had no cogent or coherent explanation for failing to present the Claimant's ET1 between her dismissal and 15 November. Moreover, neither he nor the Claimant explained why after that date the Claimant could not have done it herself, there was nothing to indicate she lacked capacity to do so.
20. Just pausing there for one moment, I have already noted that the Claimant did not give evidence, I was told specifically by Mr Elesinnla, who has appeared on her behalf, that she was not advised she could give evidence. I do not take what I have been told into account in the decision to which I have come, but I would have inferred in any event that where a layperson is represented by someone holding themselves out as able to represent them in Employment Tribunal proceedings, that that adviser's guidance would determine what evidence would be called. The Employment Judge then said this:

"Where a complaint is presented out of time because of errors by a skilled adviser, as Mr Ibekwe is, the claimant has a remedy against the adviser."

21. The Employment Judge then went on to consider the application to extend time under section 68(6) of the Race Relations Act 1976, which was relevant, of course, to the victimisation claim. Section 68(6), as is well known, is wider and more generous than provisions relating to extending time in case of unfair dismissal provided for in section 111(2) of the Employment Rights Act. A court or tribunal may, in the case of a complaint which is out of time, allow the case to proceed if, in all the circumstances of the case, it considers that it is just and equitable to do so.
22. The Employment Judge starts by stating that she took into account her conclusions in paragraph 22 above, to which I have largely referred, and the following, and she noted that the Tribunal's discretion to extend time was exceptional and it was for the Claimant to persuade her that it would be just and equitable to do so. She recognised that the discretion was a wide one and she needed to consider all the circumstances of the case and here she took into account all the evidence of the reasons for the late presentation. She stated that:

"The delay was caused by Mr Ibekwe's and the Claimant's evident complacency about the time limit. Neither considered it might be a reasonable idea to present the ET1 a reasonable time before the limit expired, because life is full of risks that can cause delay. Furthermore, no reasonable adviser could have delayed for the reasons relied on by Mr Ibekwe.

The claimant knew the facts giving rise to her victimisation complaints immediately after she was dismissed, but on the evidence she did nothing before 15 November 2008 to hurry Mr Ibekwe along in presenting her ET1, and later made no enquiries until a few hours before the deadline, although she knew or ought to have known what the deadline was."

23. That, I note, is not wholly consistent with the earlier findings of the Employment Judge that she had attempted to contact the Claimant without success throughout that week.
24. The first ground of appeal is that the Employment Judge conflated issues more properly to be considered in determining whether to extend the time under section 111(2) of the Employment Rights Act (which as I have already mentioned requires a claimant to show that it was not reasonably practicable to present complaints in time), with the more relaxed test in section 68(6) of the Race Relations Act. I will deal with this point briefly. It would have been better if the Employment Judge had been more specific as to those matters which she considered relevant to both applications, but so far as I can see, I accept Mr Sethi's submission that she applied the correct test.
25. The second ground of appeal is, in effect, that the Employment Judge placed too great reliance on the fact that she had a remedy against Mr Ibekwe and that the Employment Tribunal was placing the responsibility for his defaults upon her. It is said that the failure of a legal adviser should not be visited on the claimant, the effect otherwise would be to be a windfall for the Respondent, and the Employment Tribunal failed to consider overall the effect of this windfall for the Respondent in having a claim dismissed without examination of its merits against the prejudice to the Claimant in not being able to pursue her claim, and only having a claim against her legal representative. This was particularly where that legal representative was not in fact legally qualified and so would not have compulsory insurance and, further, the circumstances strongly suggest the charity, the Brighton and Hove Race Equality Project, operated on a shoestring and certainly lacked resources to pay any compensation.
26. These two points were further the subject of grounds 3 and 4, as was the fact that it is said the Employment Tribunal ignored the fact, or paid little attention to the fact that the proceedings were only lodged 4 hours and 20 minutes late.
27. So far as the law is concerned, contrary to the way the case appeared to have been put by Mr Elesinnla, the Court of Appeal in the Governing Body of St Albans School and Hertfordshire County Council v Neary [2009] EWCA Civ 1190 has made it quite clear that, albeit it may be helpful on occasions for the Employment Tribunals to have regard to checklists in CPR 3.9 and in the Limitation Act, it is not necessary for Employment Tribunals to mechanically go through those checklists when considering whether or not it is appropriate to extend time in Employment Tribunal proceedings, either in relation to unfair dismissal or in relation to discrimination claims. I do not propose to read the whole of the relevant passages but I make reference to paragraphs 49 to 52 of the Judgment of Smith LJ. The law in this regard, as it seems to me, is not controversial. It is also clear that the burden lies on the Claimant to satisfy the Tribunal, that it is appropriate to extend time. Generally speaking there are stricter time limits in the employment jurisdiction than in the civil courts. Again, as a general rule, the fault of legal advisers is not to be attributed to a claimant in circumstances where proceedings are not commenced in time.
28. In this regard I have been referred to a number of authorities and I think it is helpful just to refer very briefly to the Decision of the Court of Appeal in Steeds v Peverel Management Services [2001] EWCA Civ 419 in which Sir Christopher Slade, at paragraph 27, having considered the authorities:

"... so far as fault on the part of the claimant is a relevant factor in exercising the court's discretion under section 33, his solicitors' faults are not to be attributed to him personally. However, this is not to say that the existence of a claim by the claimant against his solicitors is an irrelevant factor."

29. To the same effect is HHJ McMullen QC in the case of Chohan v Derby Law Centre [2004] IRLR 685 at paragraph 16:

"The failure by a legal adviser to enter proceedings in time should not be visited upon the claimant for otherwise the defendant would be in receipt of windfall."

30. Also I should draw attention to a passage in a case of Virdi v The Commissioner of Police for the Metropolis [2007] IRLR 24 in which, coincidentally Mr Sethi appeared on behalf of the successful Appellant, at paragraph 39:

"I think there is force in Mr Sethi's submission that the chairman was wrong to say Sergeant Virdi had given no explanation for the late claim. Mr Sheldon said it is no explanation simply to say he put the matter in the hands of his lawyers. Sergeant Virdi did not explain to the Tribunal why the solicitor put the claim in late, and even suggested it could not be inferred that Sergeant Virdi himself was without fault because it was conceivable he had instructed the solicitors not to put in the claim before the date when it was lodged.

I wholly reject that submission. When assessing whether time should be extended the fault of the Claimant is plainly relevant, as it is under section 33. So if the failings are those of the solicitor and not the Claimant that is highly material. But the errors of his solicitors should not be visited on his head, as the Steeds case and the authorities to which it refers, make abundantly clear. So whatever the reason why the solicitors failed in their duty would be immaterial when assessing the claimant's culpability, save perhaps for the possibility, which I consider to be wholly fanciful, that they were acting on his instructions and that therefore he was indeed personally to blame for the late submission. The relevance of the explanation here is that it indicates that the blame for the late claim cannot be laid at Sergeant Virdi's door."

31. That is an important consideration in the exercise of discretion. I find that passage of some assistance here as well because bearing in mind that the Claimant, a layperson, placed the matter in the hands of someone who was held out as a skilled representative in Employment Tribunal cases, it is difficult to see how she could be at fault for any neglect, misunderstanding or misapprehension of the law on the part of her adviser.
32. I do not say that the fact that the fault is that of the lawyer is an irrelevant consideration, there may be cases, and there probably are cases, where there are a number of factors that lead to delay. I also do not doubt that in certain circumstances the availability of a remedy over against a negligent legal adviser is a relevant circumstance. But I have been shown no authority in cases where it is said there is concurrent fault on the part of the client and her legal adviser. It seems to me as a matter of general principle, where a client places her case in the hands of an adviser who is held out as competent to conduct proceedings on her behalf, I would not expect that such a litigant would reasonably be expected to do such things in ordinary circumstances as to issue proceedings herself.
33. I have already disposed of ground 1. Ground 2 has, it seems to me, very much more substance. Mr Elesinnla submitted that I should bear in mind that there is no real remedy in this particular case against Mr Ibekwe or against the Brighton & Hove Race Equality Project, for the reasons I have given: lack of insurance and lack of funds, the charity seems to be a one-man band. Furthermore, most of the findings, it was submitted to me, are against Mr Ibekwe and it is unreasonable to place blame for his fault at the Claimant's door.
34. Mr Sethi submitted to me that the Employment Tribunal attached little weight in relation to this part of the case as to her claim against Mr Ibekwe and concentrated more on the Claimant's own failings. He reminded me of the passages to which I have already deferred, to the Employment Tribunal found that, for example, the Claimant as well as Mr Ibekwe was complacent about the time limit and that she did nothing prior to 15 November to hurry Mr Ibekwe along and made no inquiries until a few hours before the deadline, although she knew when this was, I have already referred to the fact that that is contrary to earlier findings by the Employment Tribunal. Furthermore, the fact that there may have been a claim over against Mr Ibekwe was not an error, it was one of a number of circumstances, Mr Sethi conceded that if this was the only matter in issue, that is, the availability or not of the claim against solicitors, that would not be a reason for refusing an extension of time if other circumstances justified it, and I have already drawn attention to the passage in Virdi and another passage, at paragraph 35, in which Elias J said:

"It is well established, and common ground, that the claimant cannot be held responsible for the failings of his solicitors: see Steeds v Perverel Management Services Ltd [2001] EWCA Civ 419. For that reason it is not legitimate for a Court to refuse to extend time merely [my emphasis] on the basis that the solicitor has been negligent and that the claimant will have a legal action against the solicitor. Mr Sethi went so far as to submit that the existence of a potential claim against a legal adviser was a factor which should not be taken into account at all."

35. But Mr Sethi has now reconsidered his position in the light of the guidance given by Elias J.
36. I want to say something now as to the merits of the second round of appeal. It seems to me that the most significant factual findings are against Mr Ibekwe or relate to matters that it is unfair to place blame on the Claimant. If one starts at paragraph 25.2.1. "The delay was caused by Mr Ibekwe's complacency about the time limit" but there is no evidence that I have seen that the Claimant was complacent about the time limit. It is clear that Mr Ibekwe was responsible for the delay because he wrongly believed employment had been extended as a result of the second redeployment offer (see paragraph 13 of the Decision of the Employment Tribunal). Again, I find it difficult to see what blame can be attached to the Claimant so far as this is concerned and if the Claimant did have a wrong view of the law, it can only have been as a result of what she learned from Mr Ibekwe.
37. Mr Ibekwe had given no explanation as to why, when he knew clearly what the position was, he did not take immediate steps to complete the application after 11 November (see paragraph 14 of the Decision). So far as paragraph 15 of the Decision is concerned, where Mr Ibekwe asserts there was no one connected to the Project to whom the case could be passed, and asserted the Claimant could not do it, there was nothing to suggest that anybody had ever said to the Claimant, "You should issue the proceedings yourself" let alone ask her to do so or provide her with the materials to do so. It seems to me, therefore, that it is unfortunate that the Employment Judge should have considered that it was realistically possible for the Claimant to have done so herself. This seems to me to be contrary to the view expressed by Elias J in the Virdi case as to assumptions that one makes when an adviser agrees to conduct litigation on your behalf.
38. Further, the Employment Tribunal, despite Mr Ibekwe's distress (at paragraph 17), seemed to have found that there was no reason why his sister's illness did in fact prevent him from completing the proceedings.
39. Further, the Claimant had attempted to contact him for a week and was diffident and did not want to press too much because of his predicament. When the Claimant was finally able to speak to him, he immediately travelled from London to Brighton but was unable to complete the presentation of the petition until after 4.00am.
40. At paragraph 23(4) the Employment Judge suggested that the Claimant treated the time (midnight, 28 November) as a target, as did Mr Ibekwe. I do not know what the factual basis for that assertion is, but if that is something that the Claimant believed and, as I have said, I have not seen any evidence which suggests that it was, it can, again, only be placed at the door of Mr Ibekwe. Similarly, the suggestion that the Claimant was familiar with proceedings because she had issued earlier proceedings seems to me to be an inappropriate matter for the Tribunal to have taken into account, bearing in mind that those proceedings had been issued two weeks before, on her behalf by Mr Ibekwe and she had not issued them herself. It is fanciful in the circumstances to suggest she was at fault in not issuing them herself, particularly when she did not know until the last minute that Mr Ibekwe had not done so.
41. The criticism of the Claimant by the Employment Tribunal seemed unfounded, bearing in mind she was a layperson who placed the matter in the hands of someone who appeared to be experienced, even though not legally qualified, as the Employment Tribunal found at paragraph 6.
42. It is clear that the Employment Judge has laid the faults of Mr Ibekwe at the door of the Claimant, contrary to authority, and for that reason alone the Decision cannot stand. Further, although there are purported findings against the Claimant, they seem to me to be unreasonable or based on inadequate evidence to support a finding that she herself was substantially responsible for the delay, bearing in mind she was the client and Mr Ibekwe was responsible for the conduct of the proceedings and advising her. Further, the Employment Tribunal failed to draw a distinction between her position as client and the defaults of the person to whom she entrusted the litigation and relied on for advice. In those circumstances, it seems to me that this ground of appeal succeeds.
43. So far as grounds 3 and 4 are concerned, it is not necessary for me to decide these in the circumstances. It would have been better, in my opinion, if the Employment Tribunal had specifically referred to the questions of relative prejudice and the minimal time delay in lodging the proceedings, but it seems to me, in the circumstances, the Employment Tribunal cannot but have been aware of both of these matters as Mr Sethi submitted to me. After all, the Employment Tribunal was well aware of what the appropriate test was in relation to whether it was just and equitable to extend time and, clearly, it must have realised (I cannot see how an experienced Employment Judge could have done anything else) that the effect of refusing permission to extend time would be to deprive the Claimant of her claim and to present the Respondent with what might, on one view, be seen to be a windfall. Similarly, she was clearly well aware, because she had referred to the fact, of the modest delay of some four hours only.
44. Mr Elesinnla submitted to me that I should, in effect, allow the appeal and extend the time and refer the matter for hearing to the Employment Tribunal, but it seems to me this matter is fact sensitive and I am not prepared to accept that there was only one answer that could be given to the issues raised on this appeal. It seems to me it needs to be reconsidered, but not by the same Employment Tribunal; in the particular circumstances of this case I do not regard it as appropriate to refer this matter back to Employment Judge Pontac, it seems to me that it would be fair to all concerned that there should be a fresh hearing before a different Employment Judge to consider the matter afresh. Accordingly, the appeal will be allowed in the matter, remitted for hearing at the Employment Tribunal.