Gaurilcikiene v Tesco Stores Ltd

Permission to appeal may be granted where the court has a real concern about an employment tribunal’s handling of a material change in the respondent’s case, even though the procedural-irregularity ground may ultimately prove doubtful. The scope of the proposed appeal remains confined to the ground permitted below. An applicant cannot use the Court of Appeal proceedings to widen the challenge into an appeal against factual findings or reasoning outside that ground.

The appellant sought renewed permission to appeal after Elias LJ had refused permission on the papers. The proposed appeal challenged the Employment Appeal Tribunal’s dismissal of an appeal from the London South Employment Tribunal, which had dismissed a race-discrimination claim. The central issue was whether the employment tribunal had acted procedurally unfairly by accepting Tesco’s explanation for failing to respond to a grievance when that explanation emerged only at the substantive hearing. The Employment Appeal Tribunal had rejected the procedural-irregularity ground.

Permission to appeal granted. The application concerned the handling of a grievance letter which the applicant said Tesco had ignored. The Employment Appeal Tribunal had permitted only a ground alleging procedural irregularity, and the Court of Appeal would not allow the applicant to open a wider challenge to the employment tribunal’s factual findings or reasoning.

1. The Employment Tribunal had previously determined that it had jurisdiction because a grievance had been raised. At the substantive hearing, Tesco relied on a new explanation: either the grievance had not been received, or, if received, its non-response resulted from administrative error. The explanation emerged through the evidence and Tesco’s representative. The applicant’s representative did not answer the new case or object to its introduction.
2. There were difficulties in asserting procedural unfairness because the applicant’s representative had seen what occurred at the hearing and had been representing the applicant. The tribunal was not necessarily required to spell out the procedural position to him.
3. Nevertheless, the tribunal’s findings concerning receipt of the grievance were unsatisfactory and appeared insufficiently reasoned. It did not identify the evidential basis for finding that Tesco had no record of receipt. Its statement that the grievance had been effectively ignored also sat uneasily with the finding that receipt had not been proved and with the explanation that any failure was administrative error.
4. Although the merits of the procedural-irregularity ground remained doubtful, the court retained a real concern about the manner in which the tribunal had dealt with the grievance. That concern amounted to a compelling reason to grant permission. Half a day was directed for the appeal, before three Lords or Lady Justices, one with employment-law experience.

1. Court of Appeal (Civil Division): on a renewed application, granted permission to appeal on the procedural-irregularity issue; hearing to be listed for half a day before three Lords or Lady Justices, one with employment-law experience.
2. Employment Appeal Tribunal: by order dated 7 March 2013, dismissed the appeal from the Employment Tribunal. Appeal No: UKEAT/0209/12/KN.
3. London South Employment Tribunal: dismissed the race-discrimination claim; its judgment and reasons were sent to the parties on 5 April 2011.