Matthews (t/a Anton Motors) v Smith & Ors

Permission to appeal may be granted where the proposed appeal raises serious issues, even if the application is out of time and would otherwise be a further appeal. The court must assess the explanation for delay and relevant procedural restrictions before deciding whether the merits warrant consideration by a full constitution. Alleged fresh evidence must be presented through the proper procedural application. Granting permission means only that the appeal should be heard; it does not indicate that the appeal is likely to succeed.

Mr Matthews, trading as Anton Motors, sought permission to appeal from the Employment Appeal Tribunal’s dismissal of his appeal against an Employment Tribunal decision that three former employees had been dismissed by reason of redundancy. The proposed appeal concerned whether a subsequent transfer of the business affected liability for the dismissals under the Transfer of Undertakings (Protection of Employment) Regulations 1981, and whether the dismissals were transfer-related.

The application was filed about one month out of time. Mr Matthews also relied on material connected with alleged perjury and a possible police investigation. The central questions were whether the delay should be excused, whether the proposed grounds raised serious issues, and how any alleged fresh evidence should be presented.

1. Permission granted. Lord Justice Judge held that the application should not be dismissed solely because it was out of time. The delay was explained by the unavailability of the relevant court file. The respondents remained entitled to raise any objection based on time.
2. The proposed appeal raised serious issues warranting consideration by a full three-judge court. The adopted analysis concerned the effect of a possible transfer of an undertaking on liabilities arising from the dismissals, including the application of regulations 5 and 8 of the Transfer of Undertakings (Protection of Employment) Regulations 1981.
3. The court did not determine the merits. The proposed grounds, including the timing of the transfer, whether there had been a dismissal, and whether the dismissals were transfer-related, were sufficiently arguable to justify permission.
4. Alleged fresh evidence could not simply be produced informally. Its form and relevance had to be considered with counsel, followed by the appropriate application if the full court were invited to receive it.
5. The grant of permission did not indicate that the appeal would succeed. The matter was to be listed before three judges.

• Court of Appeal (Civil Division): Permission to appeal granted from the Employment Appeal Tribunal’s decision dated 13 March 2001.
• Employment Appeal Tribunal: Appeal dismissed.
• Employment Tribunal: The three respondents were found to have been dismissed by reason of redundancy.