Appeal No. UKEAT/0209/12/KN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 7 March 2013

Before
HIS HONOUR JUDGE PETER CLARK
MS V BRANNEY
MR M WORTHINGTON

MISS R GAURILCIKIENE	APPELLANT

TESCO STORES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR ARFAN KHAN
(of Counsel)
Direct Public Access Scheme
	
For the Respondent	MR SEBASTIAN NAUGHTON
(of Counsel)
Instructed by:
Squire Sanders & Dempsey (UK) LLP
2 Park Lane
Leeds
LS3 1ES

SUMMARY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

No procedural irregularity in the Employment Tribunal’s determination of victimisation/discrimination arising out of the Respondent’s failure to deal with a letter of complaint.  ET entitled to find that if the letter was received it was not dealt with due to an administrative oversight.

HIS HONOUR JUDGE PETER CLARK
Introduction
1.	This case has been proceeding in the London South Employment Tribunal.  The parties are Miss Gaurilcikiene, the Claimant, and Tesco Stores Ltd, the Respondent.  The Claimant, who is of Lithuanian origin, was employed by the Respondent at their Clifton Lee store.  Her manager on 24 February 2009 was a Mr Phillips.  On that day Mr Phillips complained in a loud voice that someone had jammed the photocopier.  What happened on that occasion is recorded at paragraph 29 of the Reasons for Judgment of an Employment Tribunal chaired by Employment Judge MacInnes dated 5 April 2011 in this way:

“It was not disputed that Mr Phillips raised his voice in the small staff room in the presence of Mr Akande, the Claimant, Ms Longe and Ms Dada complaining that someone had jammed the photocopier.  He said it could only be Ms Dada or the Claimant.  Ms Dada said are you accusing me.  The Claimant said stop it as Mr Phillips was shouting close to her in the small room.  He and the Claimant were some 2 feet apart.  Mr Akande intervened.  He stood between Mr Phillips and the Claimant telling them both to calm down.  While Mr Phillips was shouting he was not trying to hit the Claimant.  The Claimant then walked out.”

2.	The Claimant promptly raised a grievance about Mr Phillips’ behaviour that same day.  Subsequently, on 29 May 2009 the law offices of Ogilvy & Ogilvy Associates wrote to the head office of Tesco.  The Tribunal found (paragraph 55) that the letter raised complaints under the then Race Relations Act 1976.  It purported to be copied by email to a Ms Russell, the area personnel manager, although her email address was incorrectly stated, and by post to Ms Byfield, the site manager at the Clifton Lee store, but she told the Tribunal that she had never received it.  Whereas at an earlier Pre-Hearing Review Employment Judge Sage found that the letter of 29 May was sent, before the MacInnes Tribunal the Respondent explained that it had not dealt with the matter, if it was received, due to an administrative oversight.  It was the Claimant’s case that the Respondent’s failure to deal with that letter was an act of victimisation and/or direct discrimination contrary to the 1976 Act.  The Tribunal rejected that claim, accepting the Respondent’s explanation as to why the letter had not been dealt with (see paragraph 70).

3.	Against the MacInnes Tribunal Judgment this appeal was launched.  Having been rejected on the paper sift first by Bean J and then by Underhill J, the appeal, containing six grounds, came on for an appellant-only rule 3(10) oral hearing before Langstaff P on 18 April 2012.  The President dismissed four grounds of appeal but allowed two to proceed to this full hearing; they were grounds 1 and 5.

The appeal
4.	We can deal shortly with ground 5.  It is that the Tribunal did not determine an unlawful deductions from wages claim raised in the form ET1; that is true. At paragraph 9 of their Reasons the MacInnes Tribunal record a concession made by the Respondent that the Claimant was owed holiday pay amounting to £566.25.  However, they do not mention there or anywhere else the wages claim in relation to some 30 hours’ work done and not paid for.  It was the Respondent’s case in this appeal that the claim was conceded below; it amounted to £226.50, and that ought to have been recorded by the Tribunal but was not.  Happily, that matter has now been resolved between the parties and need detain us no further.

5.	Ground 1 raises a complaint of procedural irregularity.  It relates to the question of what happened to the letter of 29 May 2009, which formed the basis of the victimisation/direct discrimination claim.  It is correct to say that in its pleadings and before Employment Judge Sage the Respondent advanced no positive case as to what became of that letter, nor, we are satisfied, was any admission made that it was received by the Respondent.  The issue was not dealt with at all in the Respondent’s witness statements for the MacInnes Tribunal hearing.  We should deal with one point raised by Mr Khan, on behalf of the Claimant, in argument before us.  We can see no inconsistency between the way in which the Tribunal expresses itself at paragraphs 68 and 83.  It was clear that the Respondent did not respond in any way to the letter of 29 May 2009.  The question was: why not?  Was it an act of victimisation or race discrimination, or simply overlooked; a non‑discriminatory explanation?

6.	In finding that it was the latter, the Employment Judge has set out the relevant evidence and argument raised before the Tribunal in his comments to the EAT dated 28 September 2012 (bundle pages 95‑97) in answer to enquiries both by the President in his rule 3(10) order dated 23 April 2012 (paragraph 1) and by HHJ David Richardson in an order dated 6 September 2012.  For the avoidance of doubt, we wholly disregard the handwritten notes of Ms Oxley (pages 90‑94), who represented the Respondent below and who is presently on maternity leave and not in court to prove those notes today.  Those notes have not been agreed and therefore may not be referred to.

7.	From the Judge’s note, it is apparent: (a) that in evidence Ms Byfield said that she had never seen the 29 May 2009 letter before looking through the Tribunal trial bundle; (b) that it was common ground that Ogilvy & Ogilvy had emailed Ms Russell at the wrong address; and (c) that Ms Oxley put forward the Respondent’s explanation, ultimately accepted by the Tribunal, in her closing submissions, and that Mr Michael, who represented the Claimant below, neither responded to that submission in reply nor objected to that case being advanced on behalf of the Respondent.

8.	In these circumstances, we are persuaded by Mr Naughton that no serious procedural irregularity occurred.  This is not a case such as Land Rover v Short UKEAT/0496/10 (6 October 2011, Langstaff J and members) where a material issue arose between the parties that the Tribunal failed to resolve before finally determining the case; nor is it a case that was determined on a legal basis not raised by either the parties or the Tribunal (see Laurie v Holloway [1994] ICR 32, Launahurst Ltd v Larner [2010] EWCA Civ 334 (paragraph 26)); nor, further, is it a case decided on authorities to which neither the parties nor  the Employment Tribunal referred before the close of the hearing (see, by way of example, Albion Hotel v Silva [2002] IRLR 200 (EAT, HHJ Serota QC and members); compare Stanley Cole (Wainfleet) v Sheridan [2003] IRLR 885, (CA)).
  
9.	Mr Khan seeks to draw a distinction between a party professionally represented by counsel before the Employment Tribunal and one represented by a lay representative, as was Mr Michael (see Short, paragraph 57).  We have taken that distinction into account but are nevertheless satisfied that it was sufficiently open to Mr Michael to take the point had he considered it significant below.

10.	We have also placed this issue into context.  It is apparent from the Tribunal’s findings of fact that the Respondent had dealt with the Claimant’s earlier grievances; for example, by inviting her to a meeting on 27 April 2009, which she did not attend (see paragraph 52 of the Reasons).  The Respondent’s earlier activity is entirely consistent with the Respondent overlooking the letter of 29 May 2009 addressed to their head office rather than to the site at which the Claimant had been employed, if it arrived, rather than to any sinister motivation.

Conclusion
11.	In these circumstances, this appeal fails and is dismissed.