Konarzewska v Laurie Moran Arthur (Solicitors)

J U D G M E N T

1. LORD JUSTICE LAWS: This applicant seeks to renew her application for permission to appeal against a decision of the Employment Appeal Tribunal (His Honour Judge McMullen QC) given on 7th August 2003 after what had been listed as a directions hearing. The application for permission to appeal to this court was first listed for hearing on 29th October 2003, but was adjourned at the applicant's request by Keene LJ who ordered that it be refixed before 10th November 2003 in consultation with the applicant's counsel's clerk. It was relisted for 6th November. The applicant did not attend. It appears that a letter was sent to her but no contact made with her counsel. Keene LJ gave a reasoned judgment dismissing the application on its merits. Since no contact had been made with counsel concerning the hearing date of 6th November 2003, the matter has been relisted and, as I indicated to counsel this morning, I will deal with it afresh.

2. The applicant is a solicitor. She was employed by the respondent firm from 22nd February 1999 until 31st January 2001. In September 2000 she found that she was pregnant. She was dismissed purportedly by reason of redundancy. She issued proceedings in the Employment Tribunal making two claims. One was that she had been unfairly dismissed. The other was that her dismissal had in truth been on grounds of sex discrimination, that is because of her pregnancy.

3. An Employment Tribunal sitting at London South on 12th July 2001 heard both matters. They held that they lacked the jurisdiction to hear the unfair dismissal claim on the ground that the applicant had been employed by the respondents for less than a year. They dismissed the sex discrimination claim on the merits, holding that the applicant had been selected for redundancy not because she was pregnant but because in truth she was redundant.

4. It is convenient at this stage to explain a central aspect of the Employment Tribunal's findings on 12th July 2001, promulgated on 27th August 2001, relating to the sex discrimination issue. As the Employment Tribunal noted, the question whether Mr Laurie, the relevant partner in the respondent firm, knew of the applicant's pregnancy was central to her case. He was the one who dealt with the redundancy, and if he did not know of it the pregnancy cannot have been the reason for her being made redundant. Mr Laurie's evidence was that he had had a meeting with the applicant in the office on 26th September 2000 at which her redundancy was discussed. He said he knew nothing of her pregnancy at that stage. The applicant denied that there had been any such meeting. The Employment Tribunal said this at paragraph 4(G):

"She said she was not in the office at all that day. However she produced a handwritten note which stated 'leaving office 11.15. Arriving 1.45pm meeting 2pm-3pm'. So in fact she was at the office first thing."

5. Plainly, the Employment Tribunal considered that the applicant had contradicted herself. That must have greatly undermined her credibility. The ET accepted Mr Laurie's evidence and dismissed, as I have said, the sex discrimination claim.

6. The applicant launched an appeal against both the unfair dismissal decision and the sex discrimination matter. The appeal papers were lodged at the EAT on 8th October 2001. She asserted in her grounds that the ET had been simply wrong to hold that she had been employed by the respondents for less than a year. Her grounds also contained this:

"the finding at (G) on page 4 is perverse as it is based on a misunderstanding or mischaracterization of the Appellant's evidence. At no point did she say she was not in the office all that day [26th September]. Her evidence was in her statement at #23 'On the morning of 26th September which was a Tuesday he had not arrived before I left to go to an all day meeting in Enfield. I did not return to the office.' The Appellant produced a note 'leaving office 11.15'. The Tribunal put much weight on this evidence as it appears to them the Appellant contradicted herself. In fact the evidence does not do so. As the issue over whether the meeting took place that morning is fundamental and a negative inference is drawn, it is submitted that this inaccurate finding also gives rise to unfairness."

7. The appeal came on before the EAT by way of a preliminary hearing without notice to the respondents on 7th November 2001, His Honour Judge Reid QC presiding. The EAT accepted without cavil that the finding that the applicant had been employed for less than a year was wrong. It appeared to have originated with a typing error. But it is important to see what the EAT then proceeded to say. They said this:

"4. I have pointed out that obvious error, and the Tribunal's dismissal of the claim for unfair dismissal on the ground of unfair selection for redundancy on that basis. It seems to us plain that this matter has to go for a Full Hearing. What is far less clear to us is what will happen at that Full Hearing. The Tribunal below made in all other respects what appear to us to be careful findings of fact. There is one particular matter which is challenged and which I will have to revert to but it may well be that at a Full Hearing the Tribunal which hears the matter will take the view that in view of the other findings of fact it would have been inevitable that the claim for unfair dismissal on the ground of unfair selection for redundancy would fail and that therefore the appeal should be dismissed rather than the matter being sent back. That is not a matter for us."

And then, later:

"7. The one ground that will therefore go forward arises out of the error of fact as to the length of her employment. We think it is also desirable that the Tribunal should have the notes of evidence of the Employment Tribunal, because a considerable play was made over the question of whether or not the Tribunal had misunderstood, or misrecorded, or misheard evidence that the Applicant gave as to whether or not she attended at the employer's premises for the meeting on 26 September. In paragraph 4(G) of their Extended Reasons the Tribunal appear to be taking a substantial point on what it perceived as being a change in her evidence, or inaccuracy in her evidence, where they say this:

'The Applicant strongly denied any meeting on 26 September. She said she was not in the office at all that day. However she produced a handwritten note which stated "leaving office 11.15. Arriving 1.45pm meeting 2pm-3pm". So in fact she was at the office first thing.'

Given that there is an issue as to one of the matters which the Tribunal appear to have relied on and given the possibility that the Employment Appeal Tribunal on considering a Full Appeal may well consider that the appeal should be dismissed on the basis that despite the error in the final paragraph the decision would inevitably have been the same, we think it only right that it should have the Chairman's note of evidence so that each side can make what they will of any further suggested errors or differences between the note of evidence and the findings of fact which might have some effect on whether the Appeal Tribunal decides the case there and then, or whether the Appeal Tribunal decides the matter must go back for a fresh hearing before a different Tribunal."

8. However, before the matter came on for a full hearing at the EAT, the ET conducted a review of its own earlier decision. They took on board the mistake as to the applicant's length of employment, which meant of course that there was jurisdiction to hear the unfair dismissal claim. But they considered that they were bound by the doctrine of res judicata to be loyal to the first ET's findings of fact that the applicant was not selected for redundancy because of her pregnancy and that a meeting indeed took place, as described by Mr Laurie, on 26th September 2000. They considered that there had been inadequate consultation over the redundancy, and held that the applicant was entitled to a basic award of one week's pay capped at £230. They declined to make a compensatory award. This decision of the EAT has not itself been separately appealed.

9. In October 2002, as I understand it, the applicant gave notice of her desire to proceed to a full hearing at the EAT of her original appeal and renewed a request for the chairman's notes of evidence. Those notes were not provided and so far as I know have never been provided.

10. The matter was then listed for a directions hearing before Judge McMullen on 7th August 2003. Both parties were represented. Judge McMullen said this:

"7. Judge Reid's EAT was obviously in some doubt about what would happen at the full hearing, but there is no doubt that they were allowing forward only the unfair dismissal claim which would be allowed if the evidence was that the Applicant had the 12 months service required to make a claim of unfair dismissal. Thus, with considerable reluctance, as the Judge put it, the case was allowed to go forward on that one point.

8. The Order which was perfected requires careful attention, for it says as follows:

'... the Appeal be allowed to proceed to a full hearing solely on the length of employment point and the attendance at the office on the 26th day of September 2000 point in accordance with the Judgment of the Employment Appeal Tribunal."

Judge McMullen then proceeded to refer to the review in the Employment Tribunal, and thereafter said this:

"11. At a hearing for directions I have no jurisdiction except to give directions for the further conduct of the hearing. It seems to me it would be an abuse to allow this case to continue to the EAT, for the sole issue which was allowed to go forward has now been resolved by the Employment Tribunal itself in favour of the Applicant. No question arises about the correctness of that decision or the level of compensation awarded. The Applicant is thus the beneficiary of a decision by the Tribunal that she was unfairly dismissed and compensation was awarded.

12. There is simply nothing left from Judge Reid's order to go forward to a full hearing and, therefore, I will, as sought by the Respondent, decide that the case should be taken no further and is dismissed on the grounds that I have set out above and that it is academic."

11. It is contended, among other things, that His Honour Judge McMullen had no jurisdiction to order as he did. At any rate the EAT's admitted power to review its own orders has been very narrowly confined by case law of this court.

12. On 6th November 2003 in refusing permission to appeal to this court, Keene LJ said:

"11. It is quite clear in my view, when one reads paragraph 7 in its entirety [that is paragraph 7 of the November 2001 decision], that this part of the Employment Appeal Tribunal's decision was not directed towards the sex discrimination claim. It was intended to enable the Employment Appeal Tribunal at the full appeal hearing to decide whether or not the error as to the length of service actually affected the result on the unfair dismissal claim. That is what the Employment Appeal Tribunal said at page 4C-D of its judgment. It is reinforced by its subsequent reference to whether the Appeal Tribunal would decide the case there and then or would send it back for a fresh hearing. It was not opening up for debate the issue of the sex discrimination claim.

12. It follows that the only claim which was to be the subject of the full appeal was the unfair dismissal claim. That is what the employment tribunal in its subsequent review hearing dealt with in favour of the applicant. There was therefore nothing outstanding to be considered on that claim by the full Employment Appeal Tribunal at any appeal hearing. Therefore, Judge McMullen was entirely right in his decision."

13. With great respect and given that I am only dealing with the question whether permission to appeal should be granted, at this stage I take a somewhat different view. It seems to me that it is at least arguable that the EAT on 7th November 2001 considered that the issue of the meeting of 26th September 2000 was or might be a live issue in the then forthcoming appeal and it was crucial to the sex discrimination claim. The EAT anticipated that the chairman's notes would be provided and that then appropriate arguments might be deployed on either side. In fact the notes have never been produced as I have indicated and the issue of 26th September 2000 has not been revisited, the second ET taking the view that the matter was res judicata .

14. In those circumstances, I consider that there ought to be permission to appeal against the order of 7th August 2003 made by His Honour Judge McMullen and I grant permission accordingly.

ORDER: Application for permission to appeal granted.

(Order not part of approved judgment)

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