Gaurilcikiene v Tesco Stores Ltd

An Employment Tribunal does not commit a serious procedural irregularity by accepting an explanation advanced in closing submissions where the opposing representative had a sufficient opportunity to object or reply and did neither. The question is whether the procedure deprived a party of a fair opportunity to address a material case, not whether the explanation had previously been pleaded or addressed in witness statements.

A tribunal may find that a failure to respond to a complaint resulted from administrative oversight where that inference is supported by the surrounding findings, including the employer’s handling of earlier grievances.

The Claimant, who was of Lithuanian origin, alleged victimisation and direct race discrimination after the Respondent did not deal with a letter of complaint dated 29 May 2009. The Employment Tribunal, in reasons dated 5 April 2011, accepted that any failure to deal with the letter resulted from administrative oversight and rejected that claim.

On appeal, two grounds proceeded to a full hearing. The unpaid-wages point was resolved between the parties. The remaining issue was whether the Tribunal had acted with procedural unfairness by accepting the Respondent’s explanation although it had not been advanced in its pleadings or witness statements.

1. Appeal dismissed. There was no serious procedural irregularity in the Employment Tribunal’s rejection of the victimisation and direct-discrimination claim.

2. The Respondent had not admitted receipt of the 29 May 2009 letter and had not previously advanced a positive account of its fate. However, the material question before the Tribunal was why there had been no response: whether this was discriminatory conduct or a non-discriminatory administrative oversight.

3. The Employment Judge’s subsequent note established that the relevant evidence and submissions had been before the Tribunal. The site manager said that she had not seen the letter before the hearing bundle; it was common ground that the emailed copy had been sent to an incorrect address; and the Respondent’s representative advanced the oversight explanation in closing submissions. The Claimant’s representative neither objected to that course nor replied to the submission.

4. The Tribunal was therefore entitled to accept the explanation. This was unlike a case in which a tribunal leaves a material issue unresolved, decides the case on an unraised legal basis, or relies on unheralded authorities. The fact that the Claimant had a lay representative was taken into account, but that representative had a sufficient opportunity to raise any procedural objection.

5. The surrounding findings supported the inference of oversight. The Respondent had dealt with earlier grievances, including by inviting the Claimant to a meeting. That conduct was consistent with an administrative failure to deal with a letter sent to head office, rather than discriminatory motivation. The wages issue required no further determination because the parties had resolved it.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s rejection of the victimisation and direct-discrimination claim was upheld.
• Employment Tribunal (London South): reasons dated 5 April 2011 rejected the claim based on the failure to deal with the 29 May 2009 letter. A pre-hearing review had found that the letter was sent.