Gaurilcikiene v Tesco Stores Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Christopher Clarke,Mr Justice Barling |
| Judgment Date | 10 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1213 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2013/0800 |
| Date | 10 July 2014 |
[2014] EWCA Civ 1213
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lady Justice Arden
Lord Justice Christopher Clarke
Mr Justice Barling
A2/2013/0800
Mr A Khan (instructed by Direct Access) appeared on behalf of the Applicant
Mr S Naughton (instructed by Squire Patton Boggs) appeared on behalf of the Respondent
This is an appeal from the order of the Employment Appeal Tribunal dated 7 March 2013 dismissing the appellant's appeal from the order of the Employment Tribunal rejecting her claim for discrimination on the grounds of race. The judgment of the Employment Tribunal was sent out with reasons to the parties on 5 April 2011. I can take the facts from the judgment of my Lord, Rimer LJ:
"2. On 29 May 2009 a grievance letter was sent on the applicant's behalf to Tesco complaining of the way she had been treated. It was written by the law offices of Ogilvy and Ogilvy Associates, was sent to Tesco's head office at Cheshunt and was stated to have been copied by email to Ms Russell (an area personnel manager) and to Ms Byfield (a site manager at the Clifton Lee store, where the applicant worked). Tesco did not reply to the letter and the applicant asserted that its failure to do so was discriminatory on racial grounds and amounted to direct discrimination or victimisation.
3. Paragraph 21 of Tesco's ET3 admitted the raising of the grievance of 29 May, and so appeared to admit its receipt, although it said it reserved its right 'to amend these grounds on receipt of further particulars of the Claimant's claim'. Paragraph 30 denied that the applicant's grievances (she had also raised others) had not been properly investigated, and asserted that any 'failure to provide outcomes to [them] relate to the Claimant not being able to attend the meetings arranged to discuss her grievances and concerns'.
4. A pre-hearing review before Employment Judge Sage on 8 December 2009 resulted in a judgment binding on Tesco that the ET had jurisdiction to hear the applicant's race discrimination claims 'as a grievance was raised by [her] on 29 May 2009'.
5. At the substantive hearing before the Macinnes tribunal, the applicant was represented by a Mackenzie friend, Mr Michael. Tesco's stance in relation to the raising of the grievance appears by then to have changed. Paragraph 55 of the tribunal's reasons records (i) that it was Ms Byfield's evidence that she never received the grievance, and (ii) that Ms Russell's email address, to which the grievance letter had been copied, was said to have been incorrectly spelt so that it was not clear that the email could have been received by her either; and paragraph 56 recorded Tesco's concession that it had not dealt with the grievance letter, its explanation being that 'if it had received it, this was an administrative error'.
6. The Macinnes tribunal found at paragraph 68 that the applicant sent the grievance on 29 May 2009, which was a protected act, and that Tesco did not respond to it. The question was whether Tesco's lack of response to it amounted to less favourable treatment (which was said to be not seriously disputed) and, if so, whether such treatment was by reason that the applicant had done the protected act. The tribunal continued:
'69. [Tesco's] explanation was that neither Ms Byfield nor Ms Russell had received the document and it had no record of having received it at the [Tesco] registered office. If it had been received at [Tesco's] registered office then the failure to deal with it was as a result of an administrative error therefore not by reason that the Claimant had done the protected act. The Claimant was unable to prove that the document had been received at [Tesco's] registered office.
70. In these circumstances we have decided to accept [Tesco's] explanation that either it did not receive the grievance or if it did then failure to deal with it was as a result of an administrative error not by reason that the Claimant had done the protected act. …
83. In relation to the Claimant's grievance of 29 May 2009 we find that Claimant has proved that [Tesco] did effectively ignore this. [Tesco's] explanation was that it had not been received by Ms Byfield or Ms Russell. It did not know whether it had been received by [Tesco] but if it had the failure to deal with it was administrative error. We do not accept that the Claimant has proved facts from which we could conclude that the failure to deal with the grievance of 29 May 2009 was on racial grounds. In any event we find [Tesco's] explanation adequate.'
7. The applicant complains that that amounted to the acceptance by the tribunal of a new case made by Tesco for the first time at the substantive hearing to the effect that either (i) Tesco had not received the grievance at all or, (ii) if it had, its failure to deal with it was as a result of administrative error. Such a case had not been pleaded, nor advanced by Tesco to the Sage tribunal. It only emerged when Ms Byfield gave evidence. It is said that it was unfair on the part of the Macinnes tribunal not to warn the applicant's representative of the change of case so that he could consider how best to deal with it. As it is, it is said that he did not realise that the tribunal was going to accept this new case until he saw its reasons."
Rimer LJ observed that it was arguable that the finding which the Employment Tribunal made about the receipt or otherwise of the grievance letter of 29 May 2009 were arguably insufficiently reasoned. Any appeal to this court could only be on the grounds of procedural irregularity, as that was the only ground on which the Employment Appeal Tribunal had given permission for the hearing of an appeal by it.
Rimer LJ added at paragraph 15 of his judgment:
"I have my doubts as to whether there is any sufficient mileage in the procedural irregularity point to merit the giving of permission. Mr Michael may not be a professional advocate, but he was nevertheless representing the applicant before the Macinnes tribunal, and so holding himself out as fit to do so, and he must therefore have seen what was going on at the hearing in relation to the grievance issue. There are, I consider, difficulties in the way of a complaint that it was procedurally unfair of the Macinnes tribunal not to spell out to him what was happening so as to enable him to take stock of the position. My doubts in that respect explain in part why I decided to reserve my reasons on this application. My doubts remain, but putting it at its lowest I also find myself left with a real concern as to the manner in which the Macinnes tribunal deal with the matter of the grievance of 29...
To continue reading
Request your trial