Jarrett v Birmingham City Council (Unfair Dismissal)

An appellate court will ordinarily determine only the grounds advanced by the parties. It should not construct an unpleaded legal argument, even where the point appears potentially compelling.

An application to amend a Notice of Appeal must be made promptly. In exercising its discretion, the court considers non-compliance, the explanation for delay, delay and prejudice, merits, and the need for finality.

In unfair-dismissal cases, Polkey requires fairness to be assessed by reference to what the employer knew and did at dismissal. A tribunal should not retrospectively excuse procedural defects because later evidence suggests the outcome would have been unchanged. That issue must, however, be raised by a ground of appeal or a permitted amendment.

The Claimant, a long-serving Council employee, was dismissed for misconduct after working in a casual Council role while recorded as absent through sickness from her principal post. She brought claims including race discrimination, victimisation and unfair dismissal.

The Employment Tribunal dismissed the claims. On an earlier hearing, the Employment Appeal Tribunal allowed the appeal only insofar as the Tribunal had failed to determine an application to add indirect race discrimination. The matter was remitted. A differently constituted Tribunal refused that amendment on 24 August 2015.

When the appeal resumed, the Claimant sought substantially to amend her Notice of Appeal. The remaining grounds challenged the treatment of evidence concerning sickness absence and the handling of alleged victimisation.

1. Appeal dismissed. Permission to amend the Notice of Appeal was refused. Applying Khudados v Leggate [2005] ICR 1013, the application was extremely late, inadequately explained, potentially prejudicial, and lacked sufficient apparent merit. Finality and the requirement to advance complaints at the earliest practicable stage were decisive considerations.

2. The court could not allow the appeal on the possible Polkey point which it had itself identified. The Employment Tribunal appeared to have treated a serious investigatory flaw as immaterial because evidence later available to the Tribunal would have strengthened the employer's case. That approach appeared difficult to reconcile with the assessment required by section 98(4), which concerns the employer's knowledge and conduct at dismissal. However, the point was neither raised by the Notice of Appeal nor the subject of an application to amend. The court's role was to decide the dispute the parties had chosen to advance, not to formulate an argument for one party.

3. On the pleaded grounds, the Tribunal was entitled to conclude that the available records, sick notes and other evidence permitted the employer to form the requisite belief about the March 2010 absence. The email and later attendance record did not compel the contrary conclusion. The Tribunal was also entitled to assess the disciplinary process as a whole, including the appeal stage, and to find that the appeal panel's treatment of the attendance record did not render the dismissal unfair.

4. The victimisation ground failed. A tribunal cannot be expected to identify unspecified complaints by searching a witness statement where they were not clearly identified in the issues or pursued in submissions. The alleged pre-protected-act working conditions could not found victimisation, and no material omission concerning later conditions was established.

• Employment Appeal Tribunal: On the resumed appeal, dismissed the remaining grounds and refused permission to amend the Notice of Appeal.

• Employment Tribunal: On remittal, Employment Judge Dimbylow refused the application to amend the claim to add indirect race discrimination on 24 August 2015.

• Employment Appeal Tribunal: At an earlier hearing, allowed the appeal in part because the original Tribunal had not determined the application to add indirect race discrimination, and remitted that issue.

• Employment Tribunal: The Birmingham Tribunal dismissed the claims of direct race discrimination, victimisation and unfair dismissal in reasons dated 6 May 2014.