Quashie v Methodist Homes Housing Association

A party has an important right to make submissions on the evidence and law before judgment, particularly where the tribunal has directed written submissions. Where those submissions are missing, the tribunal should consider why and ordinarily consider making enquiries, such as a telephone call to the party or its representative. Proceeding without enquiry is an extreme step requiring very good reason.

An appeal based on breach of natural justice succeeds where the breach caused substantial unfairness or a serious procedural irregularity. The appellant need show only a real possibility that consideration of the missing submissions might have produced a different result. Where the original tribunal has made a detailed decision, the matter may properly be remitted to a fresh tribunal.

The claimant appealed against the dismissal of her unfair-dismissal claim by an Employment Tribunal sitting at London South. After the oral hearing, the tribunal directed both parties to lodge written submissions. The respondent’s submissions were received, but the claimant’s were not before the tribunal, apparently because of a mishap.

After two adjournments, the tribunal met about five months after the hearing. It assumed that the claimant had decided not to submit written arguments and determined the claim on the respondent’s submissions alone. The central issue was whether the tribunal should have made enquiries before proceeding and whether its failure caused a legally significant breach of natural justice.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and the claim was remitted for rehearing before a fresh Employment Tribunal.
2. Rule 27(2) of the Employment Tribunal Rules of Procedure gives a party the right to make submissions on the law and evidence. That right is fundamental to a fair hearing, and very good cause is required before it is denied.
3. The case was analogous to absence from a hearing. Following London Borough of Southwark v Bartholomew [2004] ICR 358 and Cooke v Glenrose Fish Company Ltd [2004] IRLR 866, a tribunal need not telephone in every case, but must consider whether to do so. Failure to make such an enquiry is an extreme step requiring very good reason.
4. The tribunal asked the wrong question. It asked why the claimant had decided not to file submissions, rather than why the submissions were absent. It had no evidential basis for assuming that the claimant did not intend to submit them.
5. Applying Mayo-Deman v Lewisham College [2003] UKEAT/0104/02, a technical procedural breach is insufficient. The breach must produce substantial unfairness or a serious procedural irregularity. The claimant did not need to show that the submissions would definitely have changed the result. It was enough that there was a real possibility that they might have done so.
6. The submissions raised live factual, credibility and legal issues. It was impossible to conclude that their consideration would have made no difference. In deciding whether to remit to the original tribunal, the considerations identified in Sinclair Roche & Temperley v Heard [2004] IRLR 763 were relevant. Given the detailed decision already reached, a fresh tribunal was appropriate to avoid any appearance of a second bite or pre-judgment.

• Employment Tribunal, London South: dismissed the claimant’s unfair-dismissal claim; the decision was sent to the parties on 21 June 2010.
• Employment Appeal Tribunal: allowed the appeal, set aside the decision and remitted the matter for rehearing before a different tribunal.