Newham London Borough Council v Bone: [2008] EWCA Civ 435

CA: Buxton, Smith and Wall LJJ: 30 April 2008

The claimant brought three claims against her employer, and four senior colleagues in her department, of sex discrimination, victimisation and unfair constructive dismissal, alleging that the latter was in itself an act of direct sex discrimination. The employment tribunal identified some 30 incidents of alleged discrimination or victimisation, a number of which it found proved and the remainder of which it dismissed. It further held that the claimant’s resignation was in response to the employer’s breach of the implied term of trust and confidence and that, accordingly, she had been unfairly dismissed. The judgment, however, did not state that the dismissal was an act of discrimination, and at the remedies hearing the parties differed as to the basis of the tribunal’s finding. The tribunal then issued a certificate of correction, pursuant to rule 37(1) of the Employment Tribunals Rules of Procedure 2004, adding words to its judgment to the effect that the claimant’s dismissal was an act of direct sex discrimination and victimisation by the employer. The Employment Appeal Tribunal, allowing an appeal by the employer, held that, in so amending the judgment, the employment tribunal had gone beyond what was permitted by rule 37, but it made no consequential directions, leaving the original judgment in place.

The claimant appealed.

The Court of Appeal held:
The employment tribunal’s use of the “slip rule”, in rule 37 of the Employment Tribunals Rule of Procedure 2004, to amend its previous judgment, by inserting a specific finding that the claimant’s constructive dismissal was sex discrimination and victimisation, was impermissible and an error of law. But, while the Employment Appeal Tribunal had been correct so to hold, it was evident that the tribunal had undoubtedly intended so to find, and the appeal tribunal in allowing the original decision to stand was perpetuating an injustice. The appeal tribunal ought to have exercised its jurisdiction to invite the tribunal to clarify its reasoning and findings or to have disposed of the appeal by remitting it to the tribunal with a direction to continue the remedies hearing on the basis that the claimant’s dismissal was direct sex discrimination and victimisation by the employer.

The appeal was allowed.

Appearances: John Horan (Citizens Advice Bureau, Royal Courts of Justice) for the claimant; Jude Shepherd QC (Legal Services, Newham London Borough Council) for the employer.