Practice and Procedure


PUBLISHED January 5, 2004

A technical breach of the rules of natural justice did not always result in a successful appeal. In order to succeed there had to be conduct which was "seriously irregular and unfair".The appellant (MD) appealed against the decision of the employment tribunal (the tribunal) alleging that it had breached the rules of natural justice by failing to cross-serve the final written submissions of the parties. MD brought a claim against the respondent (LC) for unlawful discrimination and victimisation for not shortlisting her for a post with LC. There was insufficient time to hear oral submissions at the conclusion of the hearing, consequently, the parties were directed to supply brief written submissions. The tribunal failed to cross-serve the written submissions, therefore neither party was served the others written submissions. The tribunal dismissed MD's claims. MD appealed on the basis that the tribunal's failure to cross-serve written submissions amounted to a breach of natural justice in that she was denied the opportunity to comment upon LC's written submissions.HELD: It was clear from London Borough of Barking & Dagenham v Oguoko [2000] IRLR 179 that failure by the tribunal to cross-serve final written submissions was a breach of the rules of natural justice. That breach could be cured by subsequent action taken by the tribunal. In the present case no such action was taken. It was not sufficient for a party to submit that there had been a breach of natural justice such as where the tribunal had failed to cross-serve the parties' final written submissions and invite comments before reaching its decision. A technical breach of the rules of natural justice could not always result in an appeal being allowed and remitted for a full rehearing. In order to succeed, MD, had to show that she had suffered something which was "seriously irregular and unfair" (Stanley Cole (Wainfleet) Ltd v J F Sheridan [2003] EWCA Civ 1046 applied). Applying that reasoning to the present case, there had been no serious irregularity or substantial unfairness.Appeal dismissed.