John Guest Engineering Ltd v Vaio

An employment tribunal must give a party a fair and reasonable opportunity to answer a wholly new point raised by the tribunal itself. It must not criticise a party for failing to address that point in evidence or draw adverse inferences from documents without giving the party an opportunity to explain them.

When deciding whether it is just and equitable to extend time for a discrimination claim, the claimant must advance an explanation for the delay. The issue of prejudice arises only after a prima facie case for an extension has been established. A tribunal must not invent an explanation without notice to the other party, particularly where that explanation conflicts with its factual findings.

Mr Vaio brought claims against John Guest Engineering Ltd, including unfair dismissal and harassment on grounds of national origin. The Employment Tribunal upheld the unfair-dismissal claim and two harassment claims, despite finding that the harassment complaints were presented several months out of time.

On appeal, the company argued that the tribunal had acted procedurally unfairly and had reached impermissible conclusions. In relation to dismissal, the tribunal had raised for itself whether the redundancy was unnecessary because another employee’s impending retirement had already achieved the required reduction. In relation to harassment, the tribunal inferred a reason for the delay which Mr Vaio had not advanced and which the company had no opportunity to address.

The central issues were whether the tribunal had fairly determined the reason for dismissal and whether it had properly exercised its discretion to extend time.

1. The appeal against the unfair-dismissal finding was allowed. The Employment Tribunal had raised the Grierson point of its own motion. That point had not formed part of Mr Vaio’s pleaded or evidential case. Even if he adopted it during the hearing, the company was entitled to a full and proper opportunity to answer it.

2. The tribunal failed to provide that opportunity. It did not obtain the relevant evidence about the proposed retirement, the application to work beyond retirement, the refusal of that application, or the timing of the redundancy process. It also relied on documents which it considered inconsistent with the company’s evidence without putting those documents and their implications to the relevant witness. The tribunal therefore acted procedurally unfairly, and its criticism of the witness and adverse inferences were unjustified.

3. The question of the reason for dismissal was remitted to a fresh Employment Tribunal. The remitted issue was whether the employer had established a reason for dismissal and, if so, what that reason was. The Employment Tribunal retained case-management discretion over the necessary scope of the hearing.

4. The appeal against the harassment findings was allowed and the two harassment claims were dismissed. The complaints were substantially out of time and the delay was wholly unexplained by Mr Vaio. The Tribunal wrongly formulated a reason for the delay without notice to the company or evidential support. That reason was also inconsistent with findings that Mr Vaio had complained while still employed and had later raised the matters in a grievance.

5. In those circumstances, the discretion to extend time was procedurally and substantively flawed. The absence of demonstrated prejudice could be considered only after a prima facie case for extending time had been established. No such case existed, and the harassment claims should not have been entertained.

• Employment Tribunal, Watford: upheld claims for unfair dismissal and harassment on grounds of national origin in a Reserved Judgment promulgated on 10 August 2010.
• Employment Appeal Tribunal: allowed the appeal against both findings. The harassment claims were dismissed. The issue of the reason for dismissal was remitted to a fresh Employment Tribunal.