Francois v Hutchison 3G UK Ltd

On a review of an Employment Tribunal’s refusal to accept a claim, the interests-of-justice ground is broader than administrative error. The tribunal must consider all relevant circumstances. Whether particulars accompanied the original form is one factor, not necessarily decisive. Where a later form merely supplies particulars of the same complaint, review of the earlier rejection is logically prior to any time-extension hearing concerning the later form. A procedural error in reversing that order should not allow issue estoppel to deny access to the tribunal. On the facts, the interests of justice required review and continuation of the race and religious discrimination complaints.

The appellant submitted an Employment Tribunal claim form within the applicable three-month period, but the tribunal rejected it as incomplete because the particulars of the alleged discrimination were not attached. She later submitted a second form containing those particulars and applied for review of the original rejection. The second form was treated as out of time. A tribunal subsequently found that the particulars had not been sent with the first form, while a separate review application remained outstanding.

The Regional Chairman granted review on the basis of administrative error. The Employment Appeal Tribunal, in UKEAT/0078/08/LA, allowed the respondent’s appeal and dismissed the review application, holding that the earlier factual finding created an issue estoppel. The central issue was whether the review should instead be granted in the interests of justice.

Lord Justice Mummery gave the principal judgment. Lord Justices Rix and Moses agreed.

1. Disposition. The appeal was allowed. The Employment Appeal Tribunal should not have interfered with the decision to permit the claim to continue.
2. Issue estoppel. There was, in principle, scope for issue estoppel in applications concerning non-acceptance of claims and extensions of time. A contested factual finding could potentially create an estoppel in later proceedings between the same parties. It was unnecessary to decide that issue here.
3. Review grounds. The review regime under the Employment Tribunals (Constitution and Rules of Procedure) Rules 2004 contained two relevant grounds. The interests-of-justice ground was broader than administrative error. The tribunal had to consider all relevant circumstances. Whether the missing particulars had been faxed with the first form was only one circumstance and was not necessarily decisive.
4. Procedural sequence. The review of the rejection of the first form should have been determined before the pre-hearing review concerning an extension of time for the second form. If the first form were accepted, the second form would be redundant. Both forms concerned the same race and religious discrimination complaint, and the second was a follow-up document intended to supply the requested particulars.
5. Application and order. The first form was submitted in time. The unrepresented claimant followed the tribunal’s direction, supplied the particulars and sought review on both available grounds. The tribunal’s failure to decide the broader ground, followed by the premature inter partes hearing, made it contrary to the interests of justice to use issue estoppel to deny access to the tribunal. No remission was necessary because only one conclusion was reasonably possible. The claimant was permitted to proceed with the race and religious discrimination complaints, but not the sex discrimination complaint, on the particulars supplied with the second form.

1. Court of Appeal (Civil Division) — In [2009] EWCA Civ 405 , the appeal was allowed and the claimant was directed to proceed with her race and religious discrimination complaints.
2. Employment Appeal Tribunal — In UKEAT/0078/08/LA, the respondent’s appeal was allowed and the application for review was dismissed on the basis that the earlier factual finding created an issue estoppel.
3. Employment Tribunal — The first claim form was rejected as incomplete; the later form was treated as out of time, and the claimant’s review application concerning the first form remained to be determined.