Jamieson v Nationwide Building Society (Practice and Procedure : Review)

A review of an Appeal Tribunal sift decision should be exceptionally rare. Ordinarily, an inter partes hearing on a review application is better used to determine the appeal itself. However, a material misleading assertion in a notice of appeal may make a review necessary in the interests of justice.

Whether an employee resigned or was dismissed is essentially a factual question. The tribunal must assess all the circumstances, including where the facts fall on the spectrum between an enforced resignation following a threat of dismissal and a genuinely negotiated voluntary departure. Permission should be granted where an arguable error of law remains, even after a misleading ground has fallen away.

The Employment Tribunal dismissed the claimant’s unfair-dismissal complaint. It found that she had resigned after her trade union representative proposed resignation in return for a clean reference, rather than being dismissed by the respondent.

On appeal, the claimant incorrectly asserted that the representative was employed by the respondent and was therefore not independent. Permission to proceed had partly been granted before that error was exposed. The respondent applied to review the sift decision.

The Appeal Tribunal considered whether the misleading assertion justified review and, if so, whether there remained reasonable grounds to permit a full appeal on the issue of resignation or dismissal.

1. Review allowed, but the decision to permit a full hearing was confirmed. The claimant’s assertion that her representative was employed by the respondent was false and materially misleading. Although this was not an error made by the Tribunal or its staff for the purpose of rule 33(1)(a), it was in the interests of justice under rule 33(1)(c) to review the sift decision.

2. Reviews of decisions granting permission for a full appeal should be exceptionally rare. They will commonly generate an inter partes hearing that could more efficiently have been the substantive appeal. The procedural consequences of refusing permission, including the possibility of an oral hearing under rule 3(10), also weigh strongly against review. A materially misleading notice of appeal was nevertheless an exceptional circumstance.

3. The question whether the employee resigned or was dismissed was essentially one of fact. It could be disturbed only for an error of law, including misdirection, perversity, or potentially inadequate reasons.

4. The enquiry required assessment of all the circumstances. The relevant facts lay between enforced resignation in response to a dismissal threat and a negotiated settlement. Although the claimant’s incorrect allegation about the representative could no longer support the appeal, it remained arguable that the Employment Tribunal had not sufficiently considered the significance of the representative being told that dismissal was imminent, the claimant then seeking a clean-reference arrangement, and the limited time available for her decision.

5. The Appeal Tribunal therefore granted permission for the appeal to proceed to a full hearing. It made no determination of the appeal’s merits.

• Employment Appeal Tribunal: review of the sift decision allowed; following reconsideration, permission for the unfair-dismissal appeal to proceed to a full hearing was confirmed.

• Employment Tribunal, Glasgow: the claimant’s unfair-dismissal complaint was dismissed on 1 March 2013 because she had resigned rather than been dismissed.