Smirnov v Ramboll UK Limited & Anor

An employment tribunal should not determine a disputed, fact-sensitive issue about the identity of an employer without witness evidence merely because a litigant in person agrees to proceed on documents and submissions. This is especially so where earlier case management failed to provide for witness statements and the litigant’s factual case depends on evidence that submissions cannot supply.

Once a claim has not been rejected at initial consideration under the early-conciliation procedural rules, that rejection power cannot later be revisited. In the absence of an initial dismissal or a strike-out application, an alleged failure to obtain a respondent-specific early-conciliation certificate did not found a later rejection of the claim.

The claimant was initially employed in Denmark by the second respondent. He later moved to London and worked for the first respondent’s UK business. Following the termination of his employment, he brought two tribunal claims. The parties disputed whether his employer at the material time was the Danish company or the UK company.

At a preliminary hearing, the Employment Tribunal decided, without witness evidence, that the Danish company was always the employer. It also decided that the claim against that company was not rejected for failure to comply with early-conciliation requirements. The claimant appealed the employment-status decision. The Danish company cross-appealed the early-conciliation decision.

1. Appeal allowed; cross-appeal dismissed. The employment-status issue was remitted for fresh determination by the Employment Tribunal.

2. The issue required findings about disputed conversations, working arrangements and the parties’ true intentions. Those matters could not properly be resolved solely from documents and submissions. The earlier case-management hearing had not directed witness statements or clearly identified the factual issues. Although the claimant agreed to proceed without witnesses, he was unrepresented and was placed in a position which should not have arisen.

3. In those circumstances, the tribunal should not have adjudicated the substantive issue without witness evidence. The point was distinguishable from cases in which a party simply failed to advance available evidence or abandoned a claim. The appeal therefore succeeded on procedural unfairness.

4. The tribunal’s general approach to the Autoclenz question was not independently erroneous. The relevant exercise is to consider and weigh all material features bearing on the parties’ true intentions. It does not depend on the order in which contractual and other evidence is considered. The practical defect was that relevant factual evidence had not been obtained.

5. The cross-appeal failed under Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386. The claim had not been rejected on initial presentation under rule 12 of the Employment Tribunals Rules of Procedure 2013. There had been neither an initial dismissal under rule 27 nor an application to strike out under rule 37. Rejection under rule 12 could not be revisited at the later preliminary hearing, notwithstanding the claimant’s failure to hold a pre-claim certificate naming the Danish company.

6. The case was remitted for a case-management hearing to clarify the parties’ cases and disputed facts, and to give directions for relevant evidence before a fresh substantive determination of the identity of the employer.

• Employment Appeal Tribunal — Allowed the claimant’s appeal against the determination of employer identity, dismissed the Danish company’s cross-appeal on early conciliation, and remitted the employment-status issue for fresh determination.
• Employment Tribunal — Held that the Danish company was always the claimant’s employer and that the claim against it was not rejected for non-compliance with ACAS early-conciliation procedures.