MS M KONARZEWSKA v LAURIE MORAN ARTHUR (SOLICITORS) [2001] UKEAT 1202_01_0711

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1202_01_0711

Case No Appeal No. EAT/1202/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS M KONARZEWSKAAPPELLANT

LAURIE MORAN ARTHUR (SOLICITORS)RESPONDENT

Before

His Honour Judge J R Reid

Lord Gladwin of Clee

Date 7 November 2001

[1]APPEARANCES For the Appellant MS E DUBICKA (of Counsel) Goldsmith Chambers Goldsmith Building Temple London EC4& 7BL HIS HONOUR JUDGE J R REID QC This is the Preliminary Hearing Ex Parte of an appeal by Ms Konarzewska against a decision of an Employment Tribunal held at London South on 12 July 2001, the decision having been entered on the register and sent to the parties on 22 August 2001. By the decision the Tribunal unanimously decided that the Applicant's claim for sex discrimination and unfair dismissal failed.

[2]The brief background to the case is that the Applicant was employed as a solicitor with a firm of solicitors, Laurie Moran Arthur. She ceased her employment there in February 2001. She was at that time pregnant. The employers claim that she was made redundant because of the closure of the litigation department of which she was, I think, the only solicitor. Her case was that the reality was that she was dismissed because of her pregnancy.

[3]The Tribunal made a variety of findings of fact (which the Applicant would like to challenge) but concluded that the reason for her less favourable treatment was her redundancy and not her pregnancy and her claim for discrimination was dismissed. The Tribunal then went on:

"The Applicant was employed for less than a year. Accordingly we cannot consider a claim of unfair dismissal on the ground of unfair selection for redundancy."

The statement that she was employed for less than a year was quite simply wrong. It appears to have come from what must, we think, have been originally a typing error in her application to the Employment Tribunal which suggested that her period of employment was from 1 February 1999 to 7 February 2000. There is an issue as to whether that had been corrected before the form went into the Tribunal, but in any event it is clear that neither side appearing before the Tribunal was misled by that because the employer's in their ET3 set out the dates correctly. From the dates that they set out it is clear that she was employed for considerably longer than a year. Furthermore when one reads the Extended Reasons it is obvious that the Tribunal knew perfectly well that she was employed for considerably more than a year because it is clear that they knew that she had been employed by the firm back in 1999 and they knew that the crucial dates around which the issue of redundancy and/or pregnancy dismissal were based were in September 2000 and that her dismissal was well after that. They clearly cannot have thought that she had ceased her employment in February 2000.

[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. I should counsel the Applicant not to get her hopes too high simply because the matter has gone to a Full Hearing.

[5]There are other matters which were raised in the Notice of Appeal. One of those was to the effect that the Applicant should be allowed to adduce further evidence. Counsel for the Applicant very sensibly accepted that she could not say the criteria for adducing fresh evidence were made out. She was absolutely right in that. We are satisfied that it would not be appropriate to allow the Applicant to adduce fresh evidence. Further it was argued that in any event the decision should be set aside because the Applicant was denied her right to a fair trial.

[6]It was put in this way, that she had at the time of the hearing only recently given birth to her first child, that her medical condition was not good, she was a lady not as young as most giving birth to their first child and she was not really up to coping with the hearing. There had been 2 applications for an adjournment both of which had failed. No appeal was made against either of those decisions to refuse an adjournment. When the hearing came on, no application was made on the day of the hearing despite, counsel tells us, the difficulty she perceived she was having with instructions and the difficulty that her client was having with concentration. Those difficulties and the Applicant's condition were pointed out to the Tribunal. It is clear that the Tribunal were aware of them and would no doubt have given the appropriate allowances for the difficulties. It cannot in our judgment be properly said that this was a case where there is a properly arguable case for the Applicant not having had the opportunity of a fair hearing. That ground is not permitted to go forward.

[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 2.pm-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]For those reasons with considerable reluctance we have decided that the matter should go for a Full Hearing. It will listed in Category C. Time estimate will be 2 hours. The other usual directions will apply.