Wacha v. Lewis & Anor

An employee’s appeal under the statutory disciplinary procedure must be assessed by reference to the statutory requirements, rather than the employer’s internal labels or expectations. Once a valid appeal is made, the employer must invite the employee to an appeal meeting. A tribunal cannot treat the appeal as ineffective merely because it was late or sent to the wrong person, unless the statutory provisions concerning unreasonable delay or exceptional circumstances are properly considered. Where an employment offer is withdrawn and there is no finding that the claimant caused the loss by failing to mitigate, the tribunal must consider future loss rather than speculate that the offer would have been completed.

Ms Wacha appealed against an Employment Tribunal’s remedy judgment following a finding that she had been unfairly dismissed. The Tribunal awarded £5,538 and made no adjustment under the statutory disciplinary and grievance procedure provisions in the Employment Act 2002.

The appeal challenged both the treatment of a late written appeal and the Tribunal’s calculation of loss of earnings. The Employment Appeal Tribunal had to determine whether the written appeal triggered the employer’s duty to arrange an appeal meeting and whether the Tribunal had lawfully assessed the claimant’s continuing loss after a conditional job offer was withdrawn.

1. The appeal was allowed on both grounds. The case was remitted to the same Employment Tribunal to reconsider compensation.

2. The Employment Tribunal correctly focused on the substantive statutory requirements, rather than the employer’s internal appeal arrangements, consistently with YMCA Training v Stewart [2007] IRLR 185. It had found that Ms Wacha’s letter amounted to an appeal for the purposes of section 31(2) of the Employment Act 2002.

3. Having reached that conclusion, the Tribunal erred by treating the appeal as ineffective for the employer’s purposes because it was late and sent to the wrong person. A valid appeal under Schedule 2, Part 1, Chapter 1, Step 3, paragraph 3(1) triggered the employer’s duty to invite the employee to a further meeting under paragraph 3(2). No meeting was held. The employer was therefore in breach of section 31(3), subject to the Tribunal’s consideration of section 31(4).

4. The Tribunal did not refer to section 31(4) or regulation 12 of Schedule 2. Although failure to mention a statutory provision is not itself an error of law, the reasoning had to show that the provision had been considered. Applying the approach identified in Redcar and Cleveland Borough Council v Bainbridge and others [2008] IRLR 776, the EAT could not determine whether exceptional circumstances had been considered. Nor could it accept that regulation 12 had been applied.

5. On compensation, the Tribunal speculated about why a conditional offer of employment had been withdrawn and found that the claimant should have started work within a week or so. There was no finding that she had failed to mitigate her loss. The Tribunal should therefore have disregarded the withdrawn offer and considered future loss of earnings.

• Employment Tribunal, London Central: found Ms Wacha unfairly dismissed and awarded £5,538 compensation following hearings on 26–27 November 2008 and 28 January 2009.
• Employment Appeal Tribunal: allowed the appeal on both compensation grounds and remitted the matter to the same Employment Tribunal.