Appeal No UKEAT/1000/03/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 September 2004

Before
HIS HONOUR JUDGE PROPHET
MR D EVANS CBE
MR T HAYWOOD

MS N CHOUGLAY	APPELLANT

EJEF LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS ABIGAIL SCHAEFFER
Free Representation Unit
4th Floor
Peer House
8 - 14 Peer House
London WC1X 8LZ	
For the Respondent	MR JOHN CROSFILL
(of Counsel)
Instructed by:
Sanders & Co
18-20 Broadway
Rainham
Essex RM13 9YW

SUMMARY

Following an interlocutory order by the Employment Tribunal, the parties agreed a statement of issues.  However the Employment Tribunal failed to address an agreed issue that they had to consider a complaint under section 103A of the Employment Rights Act 1996 .  Consequently judgment rendered unsafe.  Appeal allowed and case remitted to a differently constituted Employment Tribunal for rehearing.

HIS HONOUR JUDGE PROPHET

1	Ms Chouglay presented an Originating Application to the Employment Tribunal at Reading in June 2003.  She set out two complaints in box 1 of the application form against her former employer, EJEF Ltd, i.e. unfair dismissal and victimisation.  

2	In the part of the application which asks for details of the complaint, there are included these words:
“I believe that the real reason for my redundancy was because I challenged the Respondent’s Managing Director about the oppressive final written warning given to me on 22 February 2002, and related procedural irregularities.  I therefore believe that my redundancy was unreasonable and amounts to an unfair dismissal”

3	The Respondent’s Notice of Appearance, with no legal representative indicated at that time, resisted the complaint.  The dismissal was admitted.  The reason for that dismissal was stated to be redundancy and the thrust of the eleven paragraphs setting out the details of what happened was that dismissal for that reason was fair.  

4	Accordingly, on the face of it, and without any specific reference in the Originating Application to a claim being made related to a protected disclosure, the stage seemed reasonably set for a hearing by an Employment Tribunal to determine whether or not Ms Chouglay had been unfairly dismissed under what might be called ‘ordinary’ unfair dismissal, i.e  under section 98 of the Employment Rights Act 1996.  No doubt some uncertainty may well have remained as to what complaint Ms Chouglay was making under the heading of victimisation.

5	The hearing took place on 24 September 2004 with Mr Byrne as the Chairman and Mrs Carr and Mr Gidda as the lay members.  Ms Chouglay was represented by Ms Herries-Smith, the solicitor named on her application form, and the employer by Mr Crosfill of Counsel, who tells us today that he came on the scene somewhat late in the day.  The Reserved Decision was reached on 10 October 2003 and that Decision, with Extended Reasons was promulgated on 23 October 2003.  
The Employment Tribunal accepted that the employer’s pleaded reason for dismissal, that is to say redundancy, was correct and that dismissal for that reason was fair, having regard to the application of the provisions of section 98(4) of the Employment Rights Act 1996.  The Employment Tribunal did address the matter of victimisation by indicating that there was no free-standing complaint under that title.  

6	In order to understand how this appeal has arisen, it is necessary to set out what is said in paragraph 1(iii) of the Extended Reasons from the Employment Tribunal’s Decision.  

“It was also argued in submissions on behalf of the applicant at the conclusion of the case that the applicant had made a protected disclosure. That was not pleaded in the Originating Application nor was there any evidence before the Tribunal on which they could have determined that a protected disclosure had taken place.  Accordingly the Tribunal had no jurisdiction to determine that allegation and did not hear any submissions in relation to it.”

7	We can see that it would be most unsatisfactory if the first that either the Tribunal or the defendant knew about there being a complaint related to a protected disclosure was for it to emerge only at the submission stage.  If that was the situation, then the Tribunal might well take the view that this Tribunal took, as indicated in the paragraph which I have just read out.  

8	However, prior to the hearing of this case, the Employment Tribunal through an unnamed Chairman, had made a Directions Order on 4 July 2003.  That Directions Order included a request to the parties propose an agreed statement of issues in the case.  In compliance with that direction, Ms Herries-Smith prepared a Statement of Issues, which she submitted prior to the hearing to the other side.  The other side duly agreed to them on 19 September 2003.  Included in that Statement of Issues was the following paragraph 5:
“Did the Applicant make a protected disclosure to the Respondent in 2002 concerning the Final Written Warning given to her on 22 February 2002 within the meaning of s.103A Employment Rights Act 1996 as inserted by s.18(3) of the Public Interest Disclosure Act 1998.  In particular was the Applicant’s allegation that the Respondent had breached recognised disciplinary procedure and the rules of natural justice a qualifying disclosure as defined by s.43B of the Employment Rights Act 1996 (e.g. (b) a failure to comply with a legal obligation or (c) a miscarriage of justice.”

9	Our understanding of what happened at the Employment Tribunal hearing is that the hearing began a little later than scheduled and that there had been inserted by Ms Herries-Smith a copy of the Statement of Issues, agreed as she understood it by the other side, at the front of the bundle of documents prepared for the benefit of the members of the Tribunal and the parties.  

10	Unfortunately, we have been told and accept from Mr Crosfill, who appears on behalf of the employer here today, that that Statement of Issues was not at the front of his bundle and, unhappily, his clients had not informed him of the agreement which had undoubtedly been reached about those statement of issues between his clients and Ms Herries Smith.  

11	One of the important duties of a Chairman of an Employment Tribunal at a hearing where there has been a Directions Order, is to examine the contents of that Order and to ascertain before the hearing gets under way, whether the Directions Order has been complied with.  Accordingly, it was Mr Byrne’s responsibility to ascertain what had happened in respect of the direction that issues should be agreed between the parties.  

12	We understand that Mr Byrne now accepts that on his bundle, or the bundle prepared for the benefit of the Tribunal, the Statement of Issues was at the front of that bundle, as Ms Herries-Smith says that it was.  It does seem to follow that unfortunately Mr Byrne failed to attend to his duties in respect of properly checking the issues in the case at the outset of the hearing.  If he had done that with the representatives what had happened following the Directions Order would have come to light.  
13	We have, therefore, a situation where the Tribunal conducted the hearing apparently unaware that there had been an agreed Statement of Issues as required by the Directions Order.  Thus when Ms Herries-Smith was making her submissions to the Employment Tribunal and making them as she thought in accordance with the agreed Statement of Issues, the Tribunal stopped her from arguing a section 103A case at all.  It is on that basis that the appeal had been advanced  and submissions made that the ultimate judgment in this case is flawed.

14	We agree with Ms Schaeffer, who represented Ms Chouglay in the appeal before us today, that as a consequence of what happened this appeal should be allowed and the Decision of the Tribunal be quashed.  Energetically as it has been pursued by Mr Crosfill, we are not able to accept his submission that remission is pointless because the Tribunal made findings of fact which covered any attempt by Ms Chouglay to link earlier matters with her eventual dismissal for redundancy.  If the Employment Tribunal was not addressing the correct issues, its findings of fact cannot be regarded as safe and there is, in our view, a situation where the whole judgment is rendered unsafe.  Furthermore, we are satisfied that the correct course in a situation where the Employment Tribunal set off on the wrong foot from the outset must be to remit the matter to a differently constituted Employment Tribunal for a complete re-hearing.  Nothing in this judgment is to be taken as our indicating any views on the eventual outcome.

15	Mr Crosfill has mentioned to us that one of the important witnesses on his side is of advancing years, and we would therefore ask the Regional Chairman of the Southampton Employment Tribunal to expedite the resumed hearing in order that that problem can be mitigated.