Employment Flash - 21st May 2010

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An issue of jurisdiction should normally be dealt with at the liability hearing and not held over to the remedy hearing...

(1) Munchkins Restaurant Ltd (2) Moss v Karmazyn & others [2010] UKEAT 0359 09 LA

ET held Mu and Mo (controlling shareholder and directing mind) were liable for, amongst other matters, unlawful discrimination in relation to a continuing course of conduct in relation to one claimant over the course of 5 years, 3 years for another, 2 years for another and 1 year for the last. In making the finding of liability the ET did not descend into the detail of what each individual said on each occasion but dealt with matters more generally. Mu and Mo appealed on the basis of perversity [which the EAT turned down and lacks any interesting element] and lack of Meek compliance [which the EAT largely turned down but has some interesting aspects]. The EAT remarked on the economy of the judgment compared to the detail of the evidence "...we have little doubt that the Tribunal saved the acres of text which occasionally come before this Appeal Tribunal in discrimination claims..." 

In written submissions to the ET the Claimants raised the issue of time limits and sought the grant of an extension of time, and the matters of complaint were in fact all part of a continuing act. The ET accepted that the matter arose for decision as to whether there was a continuing act and if not whether an extension should be granted. Mu and Mo had not pre-empted such a submission in their own written response. The ET dealt with this by putting the matter over to the remedies hearing. By the time of the EAT hearing the remedies hearing had taken place.

A matter of jurisdiction is an issue for the liability hearing and not for the remedies hearing. However, although on a purist basis the ET had made only a provisional decision on liability [for which they have no remit], on a practical basis any error of law was corrected by dealing with the matter at the remedies hearing. Although ET's should not think that their powers of case management would normally stretch to deciding matters of jurisdiction at the remedy rather than the liability hearing there are some cases in which it makes no practical difference. It was inevitable the ET would conclude that there had been a continuing course of conduct in this case and therefore there was no practical injustice to Mu and Mo in holding the jurisdiction issue over. An alternative, and perhaps preferable, course would have been for the ET to invite the respondents to make further submissions confined to the issue of jurisdiction. 

The ET had made Mu and Mo jointly and severally liable. Way v Crouch [2005] IRLR 603 stated that a discrimination claim gives rise to the possibility of a joint and several award [discrimination being a statutory tort and therefore within the Civil Liability (Contribution) Act 1978] so that either respondent can be liable for the full extent of the loss. Little reasoning from the ET will be necessary for the joint and several award in a situation where one of the respondents is the company and another is the moving mind behind the company who has himself been responsible for the matters about which complaint is made [a useful alternative route where a company goes into liquidation/administration, particuarly if there is no personal injury option because psychiatric/psychological damage is absent or there is no personal injury insurer].

The ET had made little mention of a supporting witness called by Mu and Mo. Whilst the law requires that a decision should contain a sufficiency of material so that the parties may know why they won or lost, economy is also a virtue so that where a witness is corroborative only and the matters raised by the witness have plainly been dealt with then it is not necessary to explicitly refer to the witness.

The ET awarded £1,000 to each Claimant by way of aggravated damages for the manner in which the case was conducted in the ET by Mu and Mo's representative but did not adequately express reasons for this approach. The matter was remitted for them to consider what it was that the representative had done and whether costs rather than aggravated damages would be appropriate: was there additional hurt caused to the Claimants to the extent that the representative went beyond a legitimate and robust defence, or was it caused just by that.