Appeal in a case involving allegations of procedural irregularity in the Employment tribunal and jurisdictional issues on appeal

London Court of Appeal Lawyer, Arfan Khan appears successfully in the Court of Appeal in Gaurilcikiene v Tesco Stores [2013] EWCA Civ 1612 where Lord Justice Rimer grants permission to appeal against a decision of the Employment Appeal Tribunal: see paras 11-15 in the reported judgment as follows:

“11. Mr Khan, in support of the applicant’s renewed permission application, advanced cogent arguments to the effect, as he asserted, that the Macinnes tribunal had not dealt fairly with the emergence at the substantive hearing of Tesco’s explanation as to the omission to respond to the 29 May letter. He emphasised the disadvantage to Mr Michael, who is not a professional advocate, in dealing with such a late, new case. He submitted that the tribunal had not, as it should have done, drawn the fact of the change of case expressly to Mr Michael’s attention so that he could take stock of how to respond to it.

12. He also emphasised the apparent inadequacies of the Macinnes findings. Paragraph 69 records that ‘[Tesco] had no record of having received it at the [registered office]’, but does not identify upon what evidence that was based. Such a finding could only be made as a result of evidence as to what search had been made of Tesco’s records, but the tribunal does not identify such evidence. The same paragraph asserts that the applicant was ‘unable to prove that the document had been received at [the registered office]’, yet it might also be said that, following the findings of the Sage tribunal, it had already been decided that the letter had been received by Tesco: how else could the Sage tribunal hold that the ET had ‘jurisdiction to hear the … claims for race discrimination as a grievance was raised by the Claimant on 29 May 2009’?

13. Having held in paragraph 69 that the applicant had been unable to prove that the letter was received by Tesco, the Macinnes tribunal proceeded in paragraph 83 to find that ‘the [applicant] has proved that [Tesco] did effectively ignore [the letter]’. How could Tesco ‘effectively’ (whatever that means) have ignored what the applicant had failed to prove it had received? The rest of paragraph 83 suggests, however, that the evidence adduced by Tesco did not prove that it had never received the letter, but that any oversight in dealing with it was an administrative error. What evidence supported the latter conclusion?

14. With respect to the Macinnes tribunal, their findings as to the receipt or otherwise of the letter by Tesco appear to me to be unsatisfactory. Their somewhat unsure conclusions can, I consider, be said to be insufficiently reasoned”

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