PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
PRACTICE AND PROCEDURE
UNFAIR DISMISSAL
Victimisation; Point not pleaded; Procedure; Unfair dismissal
On the evidence, an Employment Tribunal found that a decision by the General Secretary of a trade union to offer the Claimant the choice of reaching a compromise agreement to leave her post or face discipline was reached because a week earlier she had informally complained of his sexual harassment of her, and he was concerned she might make the complaint formal.
The Claimant claimed that offering her this disadvantageous choice was victimisation, but did so on the basis it was in response to a grievance made one month earlier. She made no claim it was in response to any complaint about his harassment of her the week before, denying that she had complained, or that his action was responsive to a fear of future complaint. Nor, in her ET1, Amended Grounds of Claim, list of issues, witness statement and opening to the Employment Tribunal did she raise any suggestion that it was. Making such a complaint was not set out as one of the protected acts on which she relied. Nor was the General Secretary cross-examined on this basis. Then, in closing submissions her counsel raised for the first time that the choice was offered, because of protected acts, they being her informal complaints. No application was made either to amend the claim to plead this or recall the General Secretary for further cross-examination.
The Employment Tribunal held that it had no jurisdiction to consider the complaint, applying Chapman v Simon. A second ground argued that the Employment Tribunal was perverse to hold the subsequent dismissal of Claimant not unfair, since the process had been put in train by the General Secretary having a concern for his own position and to cover up his harassment of the Claimant.
The appeal was dismissed; the Employment Tribunal correctly applied Chapman, and in fact took the conduct of General Secretary at the outset into account when assessing the overall fairness of the dismissal. It did not apply too narrow a focus. A claim for costs by Respondent on the basis the appeal was misconceived was rejected.
Langstaff P J
[2015] UKEAT 0387 – 14 – 0403
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.546430
