O' Driscoll v. Hertfordshire Personal Assistance Support Service

An Employment Tribunal’s erroneous view that illegality deprived it of jurisdiction does not require an appeal to succeed where its alternative findings independently dispose of the claims. Illegality generally concerns the enforceability of rights, rather than jurisdiction. Statutory discrimination claims may be subject to a more liberal approach than contractual enforcement claims. An appellate tribunal may refuse to admit later evidence that merely seeks to rationalise or strengthen the original decision. Costs may be awarded where a legally represented party unreasonably continues an appeal after receiving a clear costs warning.

The Claimant appealed against an Employment Tribunal’s dismissal of claims for sex and race discrimination, constructive unfair dismissal and unlawful deductions from wages. The Tribunal had also stated that the contract was tainted by illegality and that it therefore lacked jurisdiction. On review, the Tribunal affirmed its decision.

During the appeal, the Respondent conceded that the jurisdiction ruling was erroneous. It sought to rely on the Claimant’s later criminal conviction to support the Tribunal’s credibility findings. The central issue was whether the Tribunal’s alternative findings on the merits were independently sufficient to sustain the dismissal of the claims.

1. Appeal dismissed. The Respondent conceded that the Employment Tribunal had erred in treating illegality as depriving it of jurisdiction. Illegality concerns the court’s discretion to enforce rights, and statutory tort claims may attract a more liberal regime.
2. The error did not undermine the result. The Tribunal had made alternative findings on the merits. It found that the alleged discriminatory events had not occurred, save for conduct by a person who was not an employee or agent of the Respondent. Those findings independently disposed of the discrimination claims.
3. The constructive unfair dismissal claim failed on causation. Applying the standard test in Western Excavating (E.C.C.) Ltd v Sharp [1978] ICR 221, the Tribunal found no fundamental breach of an express or implied term and concluded that the Claimant left for her own reasons.
4. The unlawful deduction claim also failed. The Claimant had not established the proper rate of pay or entitlement to overtime. The Tribunal was entitled to reject the contractual and financial evidence as fabricated or unsupported.
5. The Respondent’s application to rely on the later conviction was refused. A later conviction, unknown to the Tribunal at the hearing, could not repair defective reasoning or improve findings which were already legally correct.
6. Although the original Tribunal’s £10,000 costs order was not appealed, the EAT awarded a further £1,000. The Claimant, while legally represented, had unreasonably pursued the appeal after receiving a costs warning, despite the fallback findings being left substantially unchallenged.

• Employment Tribunal, Watford: dismissed the claims and subsequently affirmed its decision on review. It additionally ordered £10,000 costs.
• Employment Appeal Tribunal: dismissed the appeal. The EAT declined to admit the later conviction as evidence and awarded £1,000 costs.