George v Allied Healthcare (UK)

An employment tribunal commits an error of law if it determines a discrimination complaint that was not pleaded or otherwise identified as an issue, without alerting the parties and giving the respondent an opportunity to address it. A tribunal’s decision may be erroneous in law without the tribunal having acted without jurisdiction. An appellate tribunal may correct the error. Permission for a further appeal requires a real prospect of success or another compelling reason.

The applicant, a member of the respondent nursing agency’s qualified members’ scheme, was removed from its register after failing to attend a meeting concerning complaints. Her ET1 alleged race discrimination, victimisation, unfair dismissal and breach of contract, but did not plead victimisation by failure to reconsider her removal or reinstate her. The Employment Tribunal nevertheless found victimisation on that basis. The Employment Appeal Tribunal allowed the respondent’s appeal, holding that the issue had not been pleaded or raised and should not have been decided. Sedley LJ refused permission to appeal on paper. The renewed application concerned the EAT’s treatment of evidence and the setting aside of the victimisation finding.

1. Permission threshold. The renewed application was governed by the requirement that the proposed appeal have a real prospect of success or some other compelling reason for it to be heard under the Civil Procedure Rules 1998. The application did not satisfy that threshold.
2. Unpleaded issue. The pleaded victimisation case concerned suspension and dismissal following protected complaints. It did not include a complaint based on failure to review the decision to remove the applicant from the register or failure to reinstate her. That issue was not amended, identified at case management, particularised, included in the applicant’s witness statement, or properly raised at the hearing. The Employment Tribunal therefore decided an issue without giving the respondent fair notice or an opportunity to meet it. The finding was an error of law, and the EAT was entitled to correct it.
3. Jurisdiction. Wall LJ agreed that the victimisation finding could not stand, but was not convinced that the Employment Tribunal had acted without jurisdiction. The proper basis for the EAT’s intervention was that the tribunal had made an error of law. The EAT’s conclusion and the resulting decision remained correct.
4. Evidence. The EAT was entitled to refuse the applicant’s notes because they did not purport to record the evidence, to exclude the without-prejudice correspondence under the ordinary rule reflected in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, and to reject a witness statement made long after the hearings. Even if the documents had been admitted, they would not have altered the result. Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Sedley LJ refused permission on paper on 12 March 2009. On renewal, Wall LJ refused permission after the hearing on 29 June 2009.
• Employment Appeal Tribunal: allowed the respondent’s appeal from the Employment Tribunal’s decision dated 14 November 2008. It held that the reinstatement issue had not been pleaded or raised and that the Employment Tribunal should not have determined it.
• Employment Tribunal: dismissed most of the claims but found victimisation based on the respondent’s failure to reconsider removal from the register.