The claimant was selected for redundancy out of a pool of 9 when a downturn in business necessitated a reduction of one employee. There were 11 employees working within his area, but one was regarded as being in a unique position and was not considered amongst those who might be subject to redundancy, and the other one retired. The claimant brought claims of unfair dismissal and victimisation. The ET upheld both claims. On the unfair dismissal claim, the ET found that the projected saving of one worker had been achieved by one employee's retirement and so the dismissal of the claimant could not have been by virtue of redundancy. Since no other reason was tendered the dismissal was necessarily unfair. They also upheld his complaints of victimisation, despite the respondent claiming that the claims had not been raised by the claimant before the hearing and were months out of time. The respondent appealed.

The EAT upheld both appeals. The Tribunal had taken a point not raised by the claimant himself as to why there was no true redundancy situation. The employers had not been given a proper opportunity to meet the wholly new point. The question of redundancy was remitted to a different Tribunal. The harassment claims had been presented months out of time and the claimant had advanced no reason or explanation for the delay. The Tribunal identified in their reserved judgment a reason which could be imputed to the employee and that they considered sufficient. The employers had had no notice of that reason and no opportunity to deal with it. The reason was also inconsistent with other factual findings made by the Tribunal. The only proper way to have exercised a discretion on time in those circumstances was to have refused to extend time.

_________________

Appeal No. UKEAT/0492/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 September 2011

Before

MR RECORDER LUBA QC, MR D EVANS CBE, SIR ALISTAIR GRAHAM KBE

JOHN GUEST ENGINEERING LTD (APPELLANT)

MR P VAIO (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS SOPHIE BELGROVE (of Counsel)

Instructed by:
Messrs Mayer Brown Rowe & Maw Solicitors
201 Bishopsgate
London
EC2M 3AF

For the Respondent
MR JAMES MEDHURST (of Counsel)

Free Representation Unit
6th Floor, 289-291 High Holborn
London
WC1V 7HZ

UNFAIR DISMISSAL – Reason for dismissal including substantial other reason

Claims of (1) unfair dismissal and (2) harassment on grounds of national origins were upheld by an Employment Tribunal.

On the employers appeal, both findings were overturned.

On the dismissal, the Tribunal had taken a point not taken by the employee himself as to why there was no true redundancy situation. The employers had not been given a proper opportunity to meet the wholly new point. The question of the reason for redundancy was remitted to a different tribunal.

The harassment claims had been presented months out of time. The employee had advanced no reason or explanation for the delay. The Tribunal identified in their reserved judgment a reason which could be imputed to the employee and that they considered sufficient. The employers had had no notice of that reason and no opportunity to deal with it. The reason was also inconsistent with other factual findings made by the Tribunal. The only proper way to have exercised a discretion on time in those circumstances was to have refused to extend time.

1. This is an employer's appeal against findings by the Employment Tribunal at Watford that it had unfairly dismissed its employee, Mr Pino Vaio, and that while employed Mr Vaio had been the victim of harassment in the workplace contrary to sections 3A and 4 of the Race Relations Act 1976. The employer, John Guest Engineering Ltd, which we shall hereafter refer to as "the company", manufactures fittings and piping for plumbing and other applications. At its site at West Drayton there is a production department generating the products, using automated production machinery, and an automation department responsible for building, maintaining and repairing that production equipment. Mr Vaio is a United Kingdom born white male of Italian national origins. He began working for the company in 1993. By the time he was given notice of dismissal in December 2008, he had been working for many years in the automation department.

1. By a complaint made to the Employment Tribunal Service in May 2009 Mr Vaio asserted that his dismissal had been unfair. His claim form raised a number of other complaints: of race discrimination, of harassment, of victimisation, of breach of contract, and also included claims for unpaid monies. The Employment Tribunal (Employment Judge Southam and members) heard evidence from the parties over some eight days and they were presented with in excess of 1,250 pages of documents. By a Reserved Judgment promulgated on 10 August 2010 the Employment Tribunal rejected a large number of Mr Vaio's claims. However, it did find that, firstly, he had been unfairly dismissed, and secondly that he had been subject to two instances of harassment on grounds of national origin (in respect of which matters the Employment Tribunal decided it did have jurisdiction notwithstanding that they were prima facie presented out of time). The company appeals from those two adverse findings. There is no appeal by Mr Vaio against the Tribunal's dismissal of his other claims.

1. The reason advanced by the company for Mr Vaio's dismissal was that he had been made redundant. The company had needed to shed posts, and it was decided that the automation department would bear its share of those. The automation department had 11 employees. One, a Mr Diamond, was treated as being in a unique position and was not considered amongst those who might be subject to redundancy. The company engaged in a selection procedure for redundancy, which the Employment Tribunal was satisfied had been fair. This involved both collective and individual consultation, and the individual assessment and scoring of each employee. In the result only Mr Vaio was selected for dismissal for redundancy from the automation department.

1. His complaint to the Employment Tribunal, as formulated in his complaint form, was that he had been unfairly selected for redundancy and that it was not a genuine redundancy situation. At section 9 of that claim form he raised issues about the unfairness of the skills matrix that had been used in the assessment part of the selection process, he complained about not being redeployed to a post vacated by the resignation of another employee, a Mr Chris Lutteridge, and he asserted that he had been placed in the wrong selection pool altogether. He later provided further and better particulars of his complaints about his dismissal. Neither the claim form nor those particulars raised a complaint that his redundancy had been unnecessary, because the automation department had only needed to shed one employee in the redundancy process and that such a reduction was being achieved by the retirement of a Mr Grierson from that department at or about the same time. However, the Employment Tribunal found that this projected saving of one worker from the automation department having been achieved by Mr Grierson's retirement, the dismissal of Mr Vaio could not have been by virtue of the asserted reason, redundancy. Since no other reason was tendered, the dismissal had necessarily been unfair.

1. It was eventually common ground before us that this point, which we will call "the Grierson point", had formed no part of Mr Vaio's case as presented in writing to the Employment Tribunal, nor was it raised in his evidence, nor in his case as advanced at the hearing, where he was unrepresented. Mr Medhurst tentatively suggested on behalf of Mr Vaio that the Grierson point was raised in cross examination of Ms Ayres of the company, but as an agreed note provided to us of that cross examination indicates, what was simply put to Ms Ayres was an open question as to why three identified individuals were, "removed from the pool." The three individuals were identified by initial: BL, CD, and DG. BL was the relevant section manager, who had never been in the pool; CD was the employee Mr Diamond; and DG was the employee Mr Grierson. Ms Ayres' answer to that question had simply provided that information. This hardly indicates that the Grierson point was any part of the case that Mr Vaio was advancing to the Tribunal; rather, as the company suggests, the point was taken up by the Employment Tribunal itself at the conclusion of the evidence of Ms Ayres, who was the Human Resources Manager with overall responsibility for the redundancy process and the procedure. Her witness statement for the hearing had described a selection pool, "made up of nine individuals" (see paragraph 24 of that witness statement). That of course is consistent with the omission from the 11 workers in the automation department of both Mr Diamond and Mr Grierson. Her written evidence had otherwise focussed on the selection process applied to those nine; it did not deal further with Mr Grierson at all.

1. We have been told that when the Grierson point was raised with Ms Ayres by the Employment Tribunal she explained that Mr Grierson had always been treated as already excluded from the redundancy process by dint of his pending retirement, and that the purpose of the exercise was identify one to be made redundant from the remaining pool of nine; that is to say, initially 11, reduced to 10 by excluding Mr Diamond, and reduced to 9 by excluding Mr Grierson. That explanation, we were told, was bolstered by Ms Ayres by reference to a contemporaneous table produced at the outset of the consultation process, which is headed "Positions Affected by Department." We will call that "the PAD document". The PAD document showed, for the automation department, nine total positions and one proposed redundancy.

1. The Employment Tribunal was not satisfied with this explanation of the Grierson point. While it accepted that the company had established that the requirement for the number of employees required to carry out the relevant work had diminished, it held that it was "clear" (see paragraph 78 of the Judgment) that the company's wish was simply to reduce the relevant workforce from 11 to 10 rather than from 11 to 9. It said at paragraph 79:

"We are not however satisfied that the Claimant's dismissal is wholly or mainly attributable to that diminution. The required reduction of 11 to 10 was achieved by the retirement of Mr Grierson. We are not satisfied, as indicated above, that the Respondent has established that the fact of his retirement was taken into account, such that it remained necessary for a selection exercise to be undertaken in the automation department. We would have expected the Respondent to say something to the effect that the required reduction was from eleven to nine, (which is incidentally significantly more than the 10% reduction contemplated), that one member of the department would be retiring in February 2009, that a selection was therefore required to be made from the remaining ten and that Mr Diamond was to be separated and treated as a unique case. There was no documentation to that effect presented to the employees as part of the voluminous consultation documents that the Respondent did produce."

1. The Employment Tribunal referred to two documents that it considered undermined the company's response to the Grierson point. The first in time was the letter that Mr Vaio and others were sent on 3 November 2008 formally confirming the announcement of a redundancy situation. This stated, in part:

"As a result of this review, the proposal is that the number of positions within Automation is being reduced from 11 to 10, which means that we are proposing to make 1 person redundant."

1. Then on 11 November 2008 the company issued a question and answer fact sheet about the redundancy situation, which read, at question 10, "Why are the over 65s not being considered first for redundancy?" and the answer provided was:

"Once again, this could be discriminatory so all at risk employees are in the selection pool, despite their age. However, you may be aware that the company is considering requests to continue working past retirement on an individual basis and these have also been taken into account."

1. The latter, and in particular the second sentence of the latter, implied, the Tribunal held, that Mr Grierson would be included in the selection pool. The Employment Tribunal dealt with these documents and their interrelationship with the PAD document at paragraph 34.58 of their recital of findings of fact:

"We were told and accept that Mr Grierson had passed the normal retirement age and had made a formal request to continue working after that age. His application had been refused because of the need to make redundancies. He was therefore due to retire and would retire in late February 2009. There were no documents in which reference to this impending retirement was made. Mrs Ayres did not deal with it in her witness statement. The implication of the reply to question 10 in the question and answer document at [427-432], contrary to Mrs Ayres' assertion in reply to questions from the tribunal, was that Mr Grierson would be included in the selection pool. Despite Mr Grierson's impending retirement, the Respondent pressed on with the redundancy selection in the automation department. They identified Mr Diamond as having unique skills as a maintenance engineer and he was separated from the remainder of the group and his job was safe. That left a group of nine, excluding Mr Grierson and Mr Diamond and the Respondent resolved to select one from the nine in the automation department. This emerged in a document at [422], which was not proved before us, although we were referred to it. The exact purpose of the document is unclear, and we were not told how it was used in the course of the redundancy process. In that document it is said that there is one proposed redundancy in the automation department, from a total of nine. That is inconsistent with the evidence of the letter of 3 November [404]. When pressed on the matter in questions from the Tribunal, Mrs Ayres sought to say that the position regarding Mr Grierson was known and allowed for from the outset but there was no evidence of that and we did not accept her evidence."

1. The grounds of appeal relating to unfair dismissal, and the submissions in support of those grounds as advanced by Ms Belgrove orally and in writing, amount to a root and branch challenge to the Employment Tribunal's approach, its reasoning and its conclusions on the unfair dismissal issue. In summary, complaint is made under two broad headings: firstly, it is complained that the Tribunal dealt with the matter procedurally unfairly; secondly, it is said that they reached conclusions on the matter that were perverse. As to procedural unfairness, Ms Belgrove submitted that the Grierson point had formed at no time any part of Mr Vaio's case. It had therefore not been addressed in any evidence. The Employment Tribunal had, she submitted, therefore been wholly wrong to implicitly criticise Ms Ayres for not having dealt with it in her written evidence.

1. As to perversity, Ms Belgrove submitted that when the Grierson point was raised orally by the Employment Tribunal itself, Ms Ayres dealt with it in further unchallenged oral evidence and her account was corroborated by the contemporaneous PAD document, about which she was not asked by Mr Vaio or by the Employment Tribunal. The alternative inferences that might have been drawn and were drawn by the Employment Tribunal from the documents of 3 and 10 November were not put to Ms Ayres to deal with. The findings of the Employment Tribunal that there was no evidence in support of the "11 to 9" position advanced by Ms Ayres can only stand, it is said, if the Employment Tribunal was right to reject her own direct evidence and the PAD document, but it gave no reasons for doing either. Whilst Ms Belgrove accepted that the burden of establishing the reason for dismissal rests on the employer, she submitted that on a proper assessment of the evidence that burden was discharged, particularly having regard to the fact that, firstly, the only other reason for dismissal in play was that advanced by Mr Vaio (namely, discrimination) and that reason had been rejected in terms by the Employment Tribunal, and, secondly, that the posts vacated by Mr Grierson and by Mr Vaio's dismissal had not been filled. It will be seen from that short summary that there is considerable overlap between some of the matters advanced under the perversity ground and the procedural unfairness point.

1. For his part, Mr Vaio seeks to uphold the Employment Tribunal's conclusions essentially for the reasons they gave. His case before us was ably put by Mr Medhurst. He submits that the "11 to 9" reduction had never been part of the company's case. His skeleton argument took us to the employer's form ET3, which like the 3 November 2008 letter refers to only one post being lost in the automation department. He focussed on the absence of any mention by the company of the special position in relation to Mr Grierson until the Employment Tribunal had itself pressed the matter. He stressed that the Tribunal did provide Ms Ayres with an opportunity to deal with the point on the Grierson retirement. He submitted that the Employment Tribunal had weighed up the inconsistent material that it had had before it on this issue, and it was not satisfied on that material that redundancy, the only reason advanced, had been established as the reason for dismissal.

1. We are unanimously satisfied that the appeal must be allowed in respect of the unfair dismissal finding on the first of the two grounds advanced; that is to say, procedural unfairness. The plain fact is that the Grierson point had never formed any part of Mr Vaio's case in his grievances and appeals while an employee. It found no place in his written complaint to the Employment Tribunal. It was not mentioned when he provided further particulars of his claim, nor is it mentioned in his lengthy witness statement. It formed no part of his case as put to the company's witnesses save in the very limited respect we have already mentioned. It was therefore a wholly new point. Mr Medhurst reminds us that Mr Vaio was unrepresented and that the Employment Tribunal is a body with a quasi inquisitorial function entitled to facilitate an unrepresented employee in making his case. All of that is true, but this was not a difficult technical or obscure point for an unrepresented individual to take. It would have been the simplest thing for Mr Vaio to state in plain language that his dismissal could not have been for redundancy because one post needed to be saved from the automation department and that had been achieved by Mr Grierson's retirement. That point was taken entirely of the Tribunal's own volition. At no point do the Employment Tribunal appear to have invited Mr Vaio to indicate whether he adopted it as his case, but even if that was done and he did adopt it, the Employment Tribunal was then obliged to ensure that it gave the company a fair and reasonable opportunity to deal with this wholly new point taken for the first time in the hearing before it.

1. In our judgment that was not done. The central question on the Grierson point was whether he, Mr Grierson, had been included in the pool of those who might be made redundant or not. That in turn would raise factual questions about when he was expected to retire, when he applied to extend his employment beyond retirement, and when that request was refused. Those dates and information about them would then require mapping across onto the redundancy process timetable, and the relevant employees of the company managing the redundancy process could have been called to give evidence about it. None of that material was before the Employment Tribunal. To the extent that it might have been said, and indeed was said by Mr Medhurst, that the company had had sufficient opportunity to deal with the point while Ms Ayres was giving evidence, we accept Ms Belgrove's rejoinder that such evidence was not likely to be the most satisfactory available to the company, and indeed it was being given "on the hoof", to use her phraseology. Sufficient opportunity to deal with all aspects of the new point might have been provided had the Employment Tribunal itself put to Ms Ayres the documents it later found to be inconsistent with her other evidence (in particular, question 10 of the question and answer form), but such an opportunity was not provided to Ms Ayres; she was not asked about the ambiguous answer to question 10 at all.

1. In our judgment it was in all those circumstances quite wrong of the Employment Tribunal to implicitly criticise Ms Ayres for failing to address the Grierson point in her written evidence and to draw adverse inferences from documents on which she had had no opportunity to comment. For all those reasons we find that the Employment Tribunal's handling of the reason for dismissal point was procedurally unfair. In those circumstances we are effectively saying that the company should have, and has not had, a full and proper opportunity to develop its whole case in answer to the Grierson point. In that light it would not be sensible for us to deal with the company's perversity challenge to the Employment Tribunal's conclusion on unfair dismissal. That would not least require us to comment on evidence that is best left for consideration in the context of a proper trial of what has become the Grierson issue. The proper disposal of the matter therefore in our view is that the appeal in relation to the unfair dismissal conclusion should be allowed, and the question of what was the reason for dismissal should be remitted. We will hear counsel on the proper consequential orders.

1. Having correctly directed itself to the relevant statutory provisions, the Employment Tribunal found that there had been two incidents of harassment of Mr Vaio on grounds of national origin contrary to sections 3A and 4 of the Race Relations Act 1976. Both matters had taken place in June 2008. In short summary, what had occurred was firstly that a fellow employee had altered a computer screensaver - that superimposed the word "Italy" over the Italian flag - so that it read "Shitaly". This had been admitted by the employee in question. Secondly, the Employment Tribunal was satisfied that someone had written on a whiteboard at the workplace two derogatory messages relating to Italians. The Employment Tribunal's factual findings on these two matters are set out in paragraphs 34.50 and 34.51 of their Judgment:

"34.50 We now turn to the events of June 2008. It was not in dispute that during the course of the European Football Championships of that year, colleagues in the automation department supporting the England football team, and the Claimant supporting the Italian football team, placed screensavers on the department computers displaying the St Georges Cross and Italian flags. Nor is it in dispute that Chris Langmaid altered a screen saver displaying the Italian flag, by writing the words "shitaly" over the flag (because Mr Langmaid admitted it). What seemed to happen was that if an England supporter placed a St Georges Cross in the screensaver the Claimant would alter it to an Italian flag and vice versa. What was in dispute was whether or not there were placed on white notice boards in the department, words to the effect: "we hate Italians" and "Italians go home." There was no evidence in writing contemporaneously about the matter that was in dispute. Mr Lovely and Mr Robinson, who both gave evidence before us, said that they did not see such notices. We accept their evidence, but that does not mean that such notices were not placed on the notice board.

34.51 We think on the balance of probabilities that such notices were placed on the notice boards for short periods of time before being wiped. We reach the view on the balance of probabilities, based on Mr Langmaid's admission, the comments in the Claimant's preparation for appraisal document signed 26 June 2008 [394-5] in which he referred to 'having to work with sick minded individuals who deliberately provoke and enjoy provocation', and on the interview with Lee Robinson as part of the Claimant's grievance where reference is made to this matter at [731]. Here we note that, when Mr Robinson was questioned about racist notices and screensavers, he did not comment about the racist notices and his answer only referred to the screensavers. He was not pressed on the matter."

1. Their conclusion as to whether the whiteboard notices were in fact written is expressed in paragraph 45. However, before dealing with the employer's appeal against those adverse findings it is necessary to consider the preliminary point raised on this appeal: that the Tribunal had wrongly dealt with the question of whether the harassment complaints had been presented in time. That point had been taken before the Employment Tribunal by the company, and thus the Employment Tribunal had to determine whether Mr Vaio had ever raised these matters with the company and whether his complaint about them was presented to the Tribunal Service in time. As to the former, it found by a majority that they were relatively promptly raised by Mr Vaio at an appraisal meeting in the same month as they occurred; that is to say, June 2008. At paragraph 34.53 of their Judgment the Tribunal say:

"What was in dispute about the meeting was whether or not the Claimant made any complaint to Mr Robinson about the racist screen saver and racist notices on the notice boards. The tribunal concludes by a majority that the Claimant did complain about these matters to Lee Robinson during the course of his appraisal meeting on [25 June 2008]. "

1. As to the latter question (that is to say, whether the complaint to the Employment Tribunal Service was made in time), the Employment Tribunal found that the complaint made to it about these two matters should have been submitted by September 2008. No grievance was even presented by Mr Vaio in writing to his employers about these matters until January 2009, and no complaint was made to the Employment Tribunal Service itself until May 2009. However, having considered those matters the Tribunal decided that it was nevertheless just and equitable in all the circumstances to entertain the complaints made by Mr Vaio. Its reasoning in respect of the extension of time is contained in paragraphs 88, 89 and 90 of its Judgment:

"88. Finally we turn to the question of jurisdiction. The discrimination which the Claimant has established occurred in June 2008. It was an isolated act. At the time, the 2004 dispute resolution procedures applied, and, if the Claimant had submitted a grievance about the matter within three months of the occurrence of those events he would have been entitled to an extension of time to present his claim to the tribunal of three months. The grievance must be in writing. The Claimant did not submit a grievance about that matter until January 2009. He therefore did not secure an extension of time and the claim should have been presented by a date in September 2008. The claim was not presented until 25 May 2009 and therefore the claim was submitted some eight months out of time.

89. The tribunal must therefore decide whether it is just and equitable for us to consider the claim of discrimination. The Claimant did not, in his evidence, and only impliedly, in his grievance, did he explain the reasons for his delay but in our judgment his explanation is satisfactory. It was clear from the wording of his letter of appeal against dismissal that he did not wish to raise with his employers an allegation of race discrimination whilst he was still employed. He was clearly of the view that to do so would endanger his employment. He was perhaps unaware then of the legislation which makes victimisation for the making of complaints about discrimination unlawful. The Respondent is a family company, and members of the family who are directors work in the business. The Claimant was plainly nervous about making an allegation of race discrimination whilst he was still employed. We consider that to be the Claimant's reason for not making his claim sooner.

90. If the delay had been more substantial we might have concluded that it was not just and equitable to hear the case. In fact the Respondent investigated the matter and we can identify no prejudice to the Respondent arising from the delay of eight months. We are conscious that it is exceptional to allow a late claim to proceed and that the burden is on the Claimant. It is true that he gave no explanation in his evidence as to the reason for the delay but we take the view that we are entitled to consider all the evidence including the documentary evidence presented at the time of the submission of his grievance. For these reasons we consider that it is just and equitable to hear this particular claim and we have found in his favour in that respect."

1. Ms Belgrove, on behalf of the company, advances an appeal against the Tribunal's decision to treat the two complaints of harassment on grounds of national origins as having been made in time. She submits that, firstly, this matter was again coloured by procedural unfairness, and, secondly, that the Tribunal's exercise of discretion to extend time was substantively wrong, indeed perverse. Her core submission on procedural fairness is that the company only discovered the reason for the delay in the Mr Vaio's making of the complaint to the Employment Tribunal when it received the Reserved Judgment of the Employment Tribunal itself. There could hardly be, we consider, a more stark instance of procedural unfairness than a party discovering in the Reserved Judgment of an Employment Tribunal a first mention of a point it had had no opportunity to meet. That, says Ms Belgrove, is precisely what happened here. The employer did not know the reason advanced by the employee for his delay until it emerged from the Tribunal's Judgment in the extract we have just set out. That, she submits, was a classic case of procedural unfairness.

1. Mr Medhurst, for Mr Vaio, sensibly accepts that a Claimant's reason for being late in making a claim, or the absence of such a reason, is or at least may be material to the exercise of discretion as to whether to extend a time limit. He concedes that Mr Vaio's complaints were out of time, he concedes that no reason for them being out of time was advanced by Mr Vaio at all, and none had been put forward by the close of his evidence. The Tribunal, in particular at paragraph 89, appear to refer to documents from which they felt able to deduce what the reason was, namely that, "he did not wish to raise with his employers an allegation of race discrimination whilst he was still employed," but for his part Mr Medhurst has been quite unable to identify any document which supports such reasoning or explanation. Ms Belgrove was right to remind us that it was for the Claimant to advance any available explanation for his delay, and he advanced none. As she pithily put it, the Employment Tribunal appear to have "conjured up" a reason for a Claimant who advanced none himself. We are satisfied that that analysis of what occurred here is correct. It led at very least to procedural unfairness to the company. Ms Belgrove submits that this is not an issue that is right to remit to the Tribunal to redetermine because, she submits, even the reason for delay advanced by the Tribunal itself is inconsistent with its other findings of fact. It is to be recalled that the reason identified by the Tribunal was a reluctance on the part of Mr Vaio to raise an allegation of race discrimination whilst still in the employment of the company.

1. As Ms Belgrove amply demonstrated, that finding is inconsistent with three other matters also dealt with in the Tribunal's Judgment. First, as we have already recounted, the Employment Tribunal found as a fact that Mr Vaio had complained of these matters whilst he was still an employee, and that complaint was made to his line manager in June 2008 (see paragraph 34.53). Secondly, the Tribunal had seen and considered a grievance that was raised in January 2009 explicitly making these points at a time when Mr Vaio was still an employee. Furthermore, to the extent it is suggested that the matters were not raised earlier because his employment was considered to be in danger, it was beyond peradventure that his employment was going to be terminated once he had received notice of dismissal in December 2008, and thereafter he did not promptly bring his claims to the Tribunal. We accept Ms Belgrove's submission that those matters are wholly inconsistent with the proposition that the genuine reason for not bringing the claims earlier was that he did not wish to raise issues of race discrimination whilst still in the employment of his employer. In those circumstances the Tribunal conducted themselves unfairly in formulating for the employee a reason that he did not himself advance without notice to the other party, and substantively they erred in identifying the reason they did identify because it was wholly inconsistent with their other findings.

1. We are therefore satisfied that the Tribunal's exercise of discretion in relation to the extension of time to introduce the harassment points was flawed. Moreover, in this case the delay that the Tribunal were considering was significant; a matter of many months rather than a few days or weeks. That delay was wholly unexplained. Mr Medhurst asserts that no prejudice was demonstrated on the company's part, but in our judgement the issue of prejudice can only sensibly arise for consideration once a prima facie case for extension of time can be made out, and here it could not be. In those circumstances the harassment claims should in our judgment have fallen at the first hurdle, and there was no material before the Tribunal, and certainly none before us, that could justify the exercise of the discretion in favour of Mr Vaio in relation to the time limit for the harassment claims. In short, on this matter the Employment Tribunal went procedurally and substantively wrong in extending time. Given that assessment of the time point, we need say nothing further on the alternative case for the company that the actual findings on harassment were wrong. Those claims on harassment simply ought not to have been entertained at all. We will therefore allow the appeal in relation to the two harassment findings, and, moreover, we will dismiss the two harassment claims on which the Tribunal found for Mr Vaio.

1. These observations are supplementary to the Judgment we have just delivered. We have invited submissions from both parties on how the question of unfair dismissal should be dealt with hereafter. The first question is by whom it should be dealt with. Ms Belgrove submits that the matter should not properly go back to the same Tribunal because it has expressed already opinions on the issues that would fall to be determined on remission. Mr Medhurst submits that it should go to the same Tribunal because they have taken a balanced approach of accepting and rejecting some parts of the Claimant's case. We are satisfied that this is a case that should be remitted to a fresh Tribunal. There is substance in Ms Belgrove's assertion that this Tribunal have already expressed their views on the very issues that will need remission.

1. The question then is 'what' should be remitted to the new Tribunal. Ms Belgrove submits that it should be the narrow issue of whether a reason has been established for Mr Vaio's dismissal. Mr Medhurst submits that it should be the whole question of whether the dismissal was unfair. We take the view that Ms Belgrove's submissions are apt here in the light of our Judgment. We will remit to the new Tribunal the question of whether the employer has established a reason for dismissal and what that reason is. It will be for an Employment Tribunal Judge to give such directions in relation to case management, having had the opportunity to review our Judgment and the earlier Judgment of the Employment Tribunal, as to the scope of the hearing that is necessary to determine the remitted issue. We cannot prevent the Claimant, Mr Vaio, from advancing a positive case that there are reasons for dismissal other than those advanced by the company, but it is right to observe that those contentions as to other reasons that touch on matters such as discrimination, victimisation and harassment have been rejected already by a Tribunal, and no appeal was brought against those conclusions.