Miriki v General Council of the Bar

An Employment Appeal Tribunal must confine a full hearing to the grounds permitted at the preliminary stage, subject only to properly reasoned case-management discretion in exceptional circumstances. In redundancy cases, failure to consult does not automatically make dismissal unfair. The tribunal must assess reasonableness in the circumstances known to the employer at dismissal; it may find consultation unnecessary where it would have been futile. A tribunal need not adopt a formal structure or quote statutory provisions, provided its reasons identify the essential facts and explain the result. In direct discrimination claims, the complainant must establish less favourable treatment and racial grounds, although adverse inferences may arise from an unsatisfactory employer explanation. Tribunals need not make express findings on every piece of peripheral circumstantial evidence.

Mrs Miriki, an employee of the General Council of the Bar, was dismissed for redundancy after restructuring reduced the work of her section. An Employment Tribunal dismissed her claims for unfair dismissal, unfair selection for redundancy, racial discrimination and wrongful dismissal, accepting that redundancy was the reason for dismissal and that her selection was fair.

The First Employment Appeal Tribunal permitted an appeal on limited grounds concerning consultation, the application of Polkey, and the adequacy of the reasons on racial discrimination. The Second Employment Appeal Tribunal allowed the appeal and ordered a rehearing before a differently constituted tribunal. The central issues were whether the Second EAT exceeded the permitted grounds and whether the Employment Tribunal had erred in law in its approach to consultation, reasons and direct discrimination.

1. Scope of the EAT appeal. The First EAT had confined the appeal to specified grounds under the Employment Appeal Tribunal Practice Direction. The Second EAT was not entitled simply to disregard that limitation or introduce a new point without giving the parties an opportunity to address it and explaining its reasoning. An appeal tribunal may permit a limited departure in an appropriate case, but only on proper case-management grounds and with procedural fairness.
2. Redundancy and consultation. The Employment Tribunal understood and applied Polkey v AE Dayton Services Ltd. It was entitled to conclude that, although there had been no consultation while Mrs Miriki was out of contact in Nigeria, the employer reasonably regarded her job as having substantially disappeared and consultation as incapable of altering the outcome. The tribunal must determine fairness under s. 98(4)(a) of the Employment Rights Act 1996. It must not decide fairness by asking hypothetically whether consultation would have changed the result, although it may find that consultation could reasonably have been regarded as futile in exceptional circumstances.
3. Reasons. There is no legal requirement for an Employment Tribunal to use a particular format or reproduce statutory provisions. Its reasons must give the parties sufficient information to understand why they won or lost and enable an appellate court to identify any question of law. The Employment Tribunal’s reasons were adequate on unfair dismissal and discrimination.
4. Direct discrimination. The applicable inquiry was whether Mrs Miriki received less favourable treatment than a person of a different racial group in the same circumstances and, if so, whether the treatment was on racial grounds. The burden remained on her to prove both limbs, but an unsatisfactory employer explanation could support an adverse inference. The Tribunal’s reference to racial considerations and its use of the word convinced did not show a misdirection.
5. Peripheral evidence and appellate points. The Tribunal was not required to make express findings on every peripheral incident relied upon as circumstantial evidence. Anya was materially different because the omitted findings there concerned the alleged discriminator’s own previous conduct. Points not taken before the Tribunal could not properly be raised on appeal.

The appeal was allowed, the Second EAT’s order was set aside and the Employment Tribunal’s decision was restored. There was no order for costs, subject to a public funding assessment of the respondent’s costs.

• Court of Appeal: Allowed the Bar Council’s appeal, set aside the Second EAT’s order and restored the Employment Tribunal’s decision.
• Second Employment Appeal Tribunal: Allowed Mrs Miriki’s appeal from the Employment Tribunal and ordered a rehearing before a differently constituted tribunal.
• Employment Tribunal: Dismissed the claims for unfair dismissal, unfair selection for redundancy, racial discrimination and wrongful dismissal, although the notice claim was conceded.
• First Employment Appeal Tribunal: Granted limited permission for the appeal to proceed on specified grounds.