Wojnarowicz v MOTO Hospitality Ltd

New points of law are rarely permitted on appeal where they require further findings of fact. The restriction is especially strong where the point was not raised before the Employment Tribunal. Regulation 11(3)(a) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 applies only where the party had reasonable grounds to believe that commencing or continuing the statutory procedure would create a significant threat. A grievance which itself raises the allegedly threatening material may make that exception unavailable, particularly where the surrounding circumstances show an apology or joke rather than a real threat.

The claimant appealed against an Employment Tribunal judgment, registered with Reasons on 21 October 2009, dismissing his claims. Following an initial sift by HHJ Peter Clark, a rule 3(10) hearing before HHJ Reid QC allowed one issue to proceed to a preliminary hearing: whether the claimant had submitted a grievance concerning sexual harassment.

At the hearing before the Employment Appeal Tribunal, the claimant conceded that no such grievance had been submitted. He sought instead to raise a new argument under regulation 11(3), contending that he had reasonable grounds to believe that making the grievance would expose him to a significant threat. The central issues were whether permission should be given to raise that new point and, if so, whether it had any reasonable prospect of success.

1. New point on appeal. The proposed regulation 11(3) argument had not been raised before the Employment Tribunal and would require further findings of fact. Applying the approach in Leicestershire County Council v Unison [2005] IRLR 920, approved by the Court of Appeal and upheld by the House of Lords in CELTEC Ltd v Astley & Ors [2006] UKHL 29, the EAT held that new points of law of this kind will rarely be permitted. No exceptional circumstances existed.
2. Alternative merits conclusion. The proposed argument also had no prospect of success. Regulation 11(3)(a) requires reasonable grounds for believing that commencing the procedure would result in a significant threat to the party, the party’s property, another person or that person’s property. The claimant had raised the relevant matters in a grievance and relied on an SMS which was followed by an apology and an explanation that it had been a joke. In that context, he could not reasonably have believed that submitting the grievance would create a significant threat to himself.
3. The remaining appeal point was dismissed.

• Employment Appeal Tribunal: dismissed the remaining appeal point at a preliminary hearing.
• Employment Tribunal: judgment with Reasons registered on 21 October 2009; all claims were dismissed.
• EAT sift: HHJ Peter Clark identified no reasonable basis for the proposed grounds of appeal.
• Rule 3(10) hearing: HHJ Reid QC permitted the single issue concerning the alleged sexual-harassment grievance to proceed to a preliminary hearing.