Thajudeen v Deeside (Guernsey) Ltd & Anor

Where an Employment Tribunal grants a review in order to consider an argument omitted at an earlier preliminary hearing, it must determine the procedural status of that argument and engage with its substance if it may properly be considered. The Tribunal should decide whether the argument is a new point, whether an amendment is required, whether amendment should be permitted including any limitation objection, and then determine the argument.

It is an error of law to confirm an earlier decision without addressing a material contention that the statutory provisions may permit concurrent employment relationships for different whistleblowing claims under Employment Rights Act 1996.

The claimant, a seafarer, brought proceedings against a crew-supply company and a vessel-management company following his removal from a vessel and dismissal. A pre-hearing review determined that the first respondent was his employer from September 2010 and dismissed the proceedings against the second respondent.

On review, the claimant contended that, although the first respondent employed him for an unfair-dismissal claim, the second respondent could also be his employer for whistleblowing purposes under sections 43K(1)(a) and 43K(2)(a) of the Employment Rights Act 1996. The Employment Tribunal granted review but confirmed its earlier decision. The appeal concerned whether it had determined that distinct contention.

1. Appeal allowed. The Employment Tribunal erred in law because its review decision did not determine all the matters raised in the parties’ written submissions.

2. The review application did not challenge the finding that the first respondent was the claimant’s employer for the ordinary unfair-dismissal claim. It advanced a different contention: that the claimant could also have the second respondent as an employer for the statutory whistleblowing regime by virtue of sections 43K(1)(a) and 43K(2)(a) of the Employment Rights Act 1996.

3. The Tribunal’s reasoning addressed only the significance of section 43K to the general question of who was the employer. It did not engage with the asserted possibility of a relationship with both respondents at the same time, nor with the respondents’ arguments opposing that contention.

4. On the renewed review, the Tribunal must first decide whether the point is new. If it is an argument that an existing issue was wrongly decided, it should determine that argument. If it is new, the Tribunal must decide whether an amendment is required and, if so, whether to permit it, taking account of the nature of the claim and any limitation objection. If the point may proceed, the Tribunal must determine it.

5. The matter was remitted to the same Employment Tribunal to rehear the review application. It was for the claimant to decide whether to seek permission to amend his pleadings. The Appeal Tribunal expressed no view on the substantive whistleblowing issues.

• Employment Appeal Tribunal: Allowed the appeal and remitted the review application to the same Employment Tribunal.
• Employment Tribunal: At a pre-hearing review, held that the first respondent was the claimant’s employer and dismissed the proceedings against the second respondent. On review, it allowed the review application but confirmed the original decision.