Konarzewska v Laurie Moran Arthur (Solicitors)

At the permission stage, the Court of Appeal need not resolve the merits. Permission is appropriate where it is at least arguable that an earlier appellate order left a material issue open for determination, particularly where evidence expected to inform that issue was never supplied and a later tribunal treated it as settled. A renewed permission application may be considered afresh where an earlier refusal followed a hearing affected by an apparent failure of communication. The grant of permission does not determine the underlying issues of jurisdiction, res judicata, unfair dismissal or discrimination.

Konarzewska v Laurie Moran Arthur (Solicitors) concerned a solicitor dismissed for purported redundancy after becoming pregnant. The Employment Tribunal rejected her sex discrimination claim and initially dismissed her unfair dismissal claim for want of the required period of employment, relying on an erroneous finding about her length of service.

The Employment Appeal Tribunal accepted the service-length error and allowed the unfair dismissal issue to proceed to a full hearing. Its order also referred to a disputed meeting and the possible provision of the chairman’s notes of evidence. Following a review, the Employment Tribunal corrected the error, found unfair dismissal and awarded a basic award, while treating its earlier factual findings as res judicata. The EAT later dismissed the pending appeal as academic. The central issue was whether permission should be granted to challenge that dismissal, given the arguable scope of the earlier EAT order.

Application for permission to appeal granted. Lord Justice Laws dealt with the renewed application afresh. The judgment determined permission only and did not decide the substantive employment appeal.

1. The earlier EAT decision plainly recognised an error concerning the applicant’s length of service and allowed the unfair dismissal issue to proceed. However, its discussion also referred to the disputed meeting of 26 September 2000, the possible production of the chairman’s notes, and the possibility of deciding the appeal or remitting the matter for a fresh hearing.
2. It was therefore at least arguable that the EAT had regarded the meeting issue as live in the forthcoming appeal. That issue was potentially crucial to the sex discrimination claim because the employer’s knowledge of the pregnancy was central to the alleged reason for dismissal.
3. The chairman’s notes were never supplied, and the meeting issue was not revisited. The later Employment Tribunal treated the original factual findings as res judicata, while the EAT treated the unfair dismissal issue as resolved and the remaining appeal as academic.
4. In those circumstances, the applicant had an arguable challenge to the order of 7 August 2003. Permission was accordingly granted. The court made no final determination on the EAT’s jurisdiction, the operation of res judicata, or the merits of the unfair dismissal and discrimination claims.

• Court of Appeal (Civil Division) — On 6 February 2004, Lord Justice Laws granted permission to appeal against the Employment Appeal Tribunal’s order of 7 August 2003: [2004] EWCA Civ 452.
• Employment Appeal Tribunal — On 7 August 2003, at a directions hearing, the EAT dismissed the pending appeal as academic because the unfair dismissal issue had been resolved on review.
• Employment Tribunal — The tribunal initially rejected the unfair dismissal claim for lack of the required length of service and dismissed the sex discrimination claim. On review, it corrected the service-length error, found unfair dismissal, awarded a basic award and declined a compensatory award.
• Employment Appeal Tribunal — On 7 November 2001, the EAT accepted the service-length error and allowed the unfair dismissal issue to proceed to a full hearing, referring also to the disputed attendance at the office and possible further evidential issues.