Gaurilcikiene v Tesco Stores Ltd

An appellate court may review an Employment Tribunal for procedural irregularity only within the permitted grounds of appeal. A tribunal need not intervene merely because a party advances an unpleaded or unexpected case where the represented party had a fair opportunity to cross-examine, respond, object or seek an adjournment and did not do so. Natural justice and the right to a fair hearing do not require a tribunal to enter the arena or give additional guidance to a legally knowledgeable representative. A challenge to the evidential basis or substantive correctness of a tribunal’s factual inference is distinct from a procedural challenge.

The claimant appealed to the Court of Appeal from the Employment Appeal Tribunal’s order dated 7 March 2013, which had dismissed her appeal from an Employment Tribunal decision sent to the parties on 5 April 2011. The Employment Tribunal rejected her race-discrimination and victimisation complaints concerning Tesco’s failure to respond to a grievance letter dated 29 May 2009.

The claimant argued that an earlier Employment Judge’s decision had conclusively determined that Tesco had received the grievance. She also argued that the substantive tribunal acted unfairly by accepting Tesco’s alternative case on receipt and administrative error without warning, an adjournment, or further opportunity to respond. The central issue was whether that conduct amounted to procedural irregularity causing an unfair hearing.

1. Appeal dismissed. The earlier Employment Judge’s decision was not binding on whether Tesco had received the grievance. The preliminary decision concerned jurisdiction under Employment Act 2002, section 32, read with paragraphs 6 and 9 of Schedule 2. It required the claimant to show that she had submitted a relevant written grievance to her employer, but it did not decide receipt. The earlier decision expressly left the question of whether the grievance was submitted in time to the substantive tribunal.
2. The alleged procedural irregularity was not established. The relevant principles concern the process before the tribunal, natural justice and each party’s entitlement to a fair hearing. They did not require the Employment Tribunal to raise the issue itself where the claimant was represented by a legally knowledgeable representative.
3. The representative could cross-examine the witness who denied receiving the letter, challenge the reliability of that evidence, address Tesco’s submissions, object to the new case, or seek an adjournment. He did none of those things. The tribunal was therefore entitled to conclude that he had an opportunity to address every relevant point. It was not required to intervene in the adversarial contest.
4. Davies v Sandwell Metropolitan Police Borough Council [2013] EWCA Civ 135, concerning firm case management where excessive evidence or cross-examination causes substantial loss of time, did not govern the natural-justice issue. A challenge to the evidential basis for the tribunal’s inference about receipt concerned substantive findings, not procedure, and fell outside the limited permission to appeal. The arguments based on Launahurst Ltd v Larner [2010] EWCA Civ 334 and Komeng v Metropolitan Borough Council [2011] UKEAT/0592/10/SM therefore did not arise.
5. In any event, the tribunal had made an alternative finding that any failure to deal with the grievance resulted from administrative error. Even if receipt had been conclusively established, that alternative finding would have prevented substantial injustice. The appeal was dismissed.

• Court of Appeal (Civil Division) — dismissed the appeal on 10 July 2014.
• Employment Appeal Tribunal — dismissed the claimant’s appeal by order dated 7 March 2013.
• Employment Tribunal — rejected the race-discrimination claim; reasons were sent on 5 April 2011.