Appeal No. UKEAT/0365/10/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 March 2011

Before

THE HONOURABLE MRS JUSTICE COX, MS N SUTCLIFFE, MS P TATLOW

MR N A INSAIDOO (APPELLANT)

METROPOLITAN RESOURCES NORTH WEST LTD (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
No appearance or representation by or on behalf of the Appellant

For the Respondents
MS S BIBI (Representative)

PRACTICE AND PROCEDURE – Chairman alone

This claim of unfair dismissal for asserting a statutory right was determined, in error by an Employment Judge sitting alone. Section 4 (1) Employment Tribunals Act 1996 applies.

Appeal allowed and case remitted to be determined by a three member Tribunal.

1. This appeal by the Claimant has been listed today for a full hearing on one point only, namely the decision of Employment Judge Shotter, sitting alone at Liverpool Employment Tribunal on 16 November 2009, to dismiss his claim of unfair dismissal. The judgment was promulgated with reasons on 27 January 2010.

1. The claim has an unfortunate and confusing procedural history. The Claimant is not present and is not represented today, apparently being currently in Ghana. He has told the EAT that he is content to rely on written submissions and will not be attending. The Respondents are represented by Ms Bibi, who was present at the earlier, preliminary hearing.

1. In the circumstances we consider it sensible to set out, so far as is relevant, the observations of the President of the EAT when he considered the papers in this matter on the sift procedure, and directed a preliminary hearing to try and clarify what was a somewhat confusing picture.

"2. The boxes ticked in the ET1 are:

(5) Unfair dismissal

(8) Other payments

(9) Other complaints

Unfair Dismissal

3. It seems, though the ETl does not say so, that the Claimant resigned, so the dismissal relied on is constructive: see Reasons para. 18. Box 5 pleads eight complaints which are presumably the conduct relied on as justifying the resignation; but some of them are potentially claims in their own right (see below).

4. It was the Respondent's pleaded case that the Claimant had less than a year's service so that he had no right to claim for unfair dismissal. He apparently conceded this on 10.3.09: see para. 6 of the Reasons. But no-one at the time fastened on this concession and the case went through two CMDs on the basis that unfair dismissal was in play. A two-day hearing was fixed for 16 and 17 November. At the eleventh hour the Respondent spotted the point and on 12 November e-mailed the Tribunal asking for the claim to be struck out. The next day, 13 November, EJ Reed ordered a strike-out and altered the listing to one hour on 16 November. The e-mails in question were not with the N/A and obtaining them has taken a long time - hence the delay (I am bound to say that, given the history, I think it was precipitate for Judge Reed to strike out unilaterally: it would have been fairer to allow the point to be taken as a preliminary point on 16 November. But that is water under the bridge.)

5. The Claimant was not going to attend the hearing - he was in Ghana - but he was going to send witnesses. He says - N/A para. 10 -that in consequence of the Tribunal's order he stood them down.

6. Notwithstanding the strike-out the unfair dismissal claim was considered at the hearing (before Judge Shotter) after all, on the basis that the one-year limit was not applicable insofar as the Claimant's claim could/should be read as one of dismissal for asserting a statutory right, namely some of the rights asserted under box 5 (s. 104). It's not clear who raised that. It's not even clear that the Judge was aware of the strike-out, although surely she must have been?

7. The unfair dismissal claim is addressed at paras. 26-30 of the Reasons. The language and the analysis is a bit muddled, but the reasoning seems to be (a) that the claim under s. 104 failed because the Claimant's reason for resigning was not any conduct by the Respondent associated with his assertion of a statutory right but the fact that he had been asked for proof of his immigration status; and (b) that the Tribunal had no jurisdiction to entertain any "ordinary" claim of unfair dismissal. In practice, therefore, the Tribunal did accept jurisdiction in respect of the s. 104 issue but dismissed the claim on the merits, i.e. on the basis that there had been no (constructive) dismissal.

8. What the Claimant says is that, that being so, he stood down his witnesses under a misapprehension: he was told unfair dismissal was not on the agenda, but it was.

9. That must raise an (at least) arguable case of procedural unfairness. But whether there was any substantial injustice depends on what the witnesses could have said on the dispositive issue. The issue is the Claimant's own state of mind, i.e. what he was resigning in response to; and it seems rather unlikely they could have assisted on that; but I couldn't rule 3 it on that basis. (I'm not sure also what orders there were for witness statements and whether he had complied with them.)"

1. We would add to the President's comments that it appears from paragraph 6 of Employment Judge Shotter's reasons that it was the Claimant himself who explained that he was claiming unfair dismissal for asserting a statutory right in his email of 10 March 2009.

1. Following these observations on the sift the matter then came before the EAT on 1 December 2010 for a preliminary hearing before three members, HHJ McMullen QC presiding. On that occasion the EAT dismissed all the Claimant's grounds of appeal save that relating to unfair dismissal for asserting a statutory right. On further consideration however, the EAT noted what they described as a "seismic flaw" running through all this, namely that there had been an unfair dismissal claim determined by a one-person tribunal and that, by virtue of section 4 of the Employment Tribunals Act 1996, there is no jurisdiction for such a procedure.

1. At paragraph 3 of the judgment at that preliminary hearing the EAT said this:

"The matter must inevitably return to the Employment Tribunal for a determination by a three-person Tribunal with a different Judge. The appeal could be allowed if this were a full hearing. At the moment we do not have power to do that and, having heard Ms Bibi, what we propose to do is to order a full hearing and to give the Respondent 14 days to provide its answer and to say whether it is prepared to agree that this appeal should be allowed by consent and if so then the direction will be that this case be heard as we have said above."

1. Before us today Ms Bibi has sought to resist the appeal on the basis that the Employment Judge determined the issues in the Claimant's case on the facts, finding that the Claimant's reason for resigning was not any conduct by the Respondents associated with his assertion of a statutory right, but the fact that he had been asked for proof of his immigration status. Ms Bibi was apparently still hopeful that it might be possible for this EAT itself to dismiss the claim for constructive dismissal for asserting a statutory right on its merits.

1. Unfortunately, as HHJ McMullen pointed out at the preliminary hearing, the point is a jurisdictional one. The EAT on that occasion referred to the provisions of section 4. In essence unfair dismissal for asserting a statutory right is not one of the proceedings listed in section 4 (3), pursuant to which an Employment Judge can hear the matter sitting alone. That means in this case that the provisions of section 4(1) apply. It was therefore necessary for the claim, as identified by the Claimant in his email, to be heard by an Employment Judge and two other members.

1. There having been a hearing and a determination for which there was no jurisdiction, there is no alternative but for us now to allow this appeal. We therefore do so and remit it to the Employment Tribunal in order that this one remaining issue can be determined, we would hope fairly swiftly, pursuant to the rules governing proceedings before the Employment Tribunal.