Afolabi v London Borough of Barking & Dagenham

A respondent may raise a statutory procedural defence for the first time at an Employment Tribunal hearing. The Tribunal has discretion to allow the point, without being confined by pleading or procedural rules, provided the claimant has a fair opportunity to meet it in evidence and argument and is not unfairly disadvantaged. The decisive issue is fairness rather than a fixed deadline or prescribed form. Under section 32(6) of the Employment Act 2000, the Tribunal has jurisdiction to determine compliance with the grievance procedure once non-compliance is raised.

The applicant brought claims arising from her employment, including constructive unfair dismissal, harassment and detriment for making a protected disclosure. The respondent had indicated in its ET3 that the substance of the claims had been raised under a grievance procedure, but sought at the opening of the Employment Tribunal hearing to strike out the protected-disclosure claim for non-compliance with section 32 of the Employment Act 2000.

The Tribunal adjourned to allow the applicant to respond, permitted the point to be taken, and struck out the claim. The Employment Appeal Tribunal dismissed the applicant’s appeal. The central issue on the renewed application for permission to appeal was whether the point could properly be raised late, without a formal amendment, where the applicant had been given a fair opportunity to deal with it.

Permission to appeal refused.

1. A new defence or other point raised for the first time at the hearing falls within the Employment Tribunal’s discretion. Justice is generally served by deciding disputes on all relevant facts and arguments, provided that the opposing party is not placed at an unfair disadvantage. The Tribunal must take particular care to provide a fair opportunity to address the point in evidence and argument. Pleadings and procedural rules remain important, but they are secondary to doing justice between the parties and may be dispensed with where appropriate.
2. There is no fixed procedural deadline or prescribed form governing the raising of a section 32 grievance-procedure point before the Tribunal begins considering the merits. The controlling question is whether the point can be raised without injustice to the claimant. The absence of a formal amendment to the ET3 therefore did not itself prevent the Tribunal from considering the issue.
3. Section 32(6) of the Employment Act 2000 gives the Tribunal jurisdiction to determine whether the grievance procedure was complied with once that issue is raised. The distinction between constitutive and adjudicative jurisdiction discussed in Raghib Ahsan v Matt Carter [2005] EWCA Civ 990 did not need detailed consideration.
4. The Tribunal had adjourned the hearing for a day, enabling the applicant to consider and answer the new point. There was no suggestion that she remained unable to deal with it or that compliance with the grievance procedure was factually disputed. The Tribunal was entitled to exercise its discretion as it did, and the EAT was entitled to uphold that decision. There was no real prospect of a successful appeal.

1. Court of Appeal (Civil Division): On 1 December 2015, refused the renewed application for permission to appeal: [2015] EWCA Civ 1444.
2. Employment Appeal Tribunal: Dismissed the appeal, holding that the statutory point could be raised before the merits were considered, provided the claimant had a fair opportunity to respond.
3. Employment Tribunal: Allowed the respondent to raise the non-compliance point after an adjournment and struck out the protected-disclosure detriment claim for want of jurisdiction.