Metanie v Telegan Gas Monitoring

An application for permission to appeal out of time may be dismissed because the applicant deliberately misled the court and thereby caused an adjournment. It may also be dismissed where the proposed appeal has no real prospect of success and no other compelling reason exists for it to be heard.

The obligation to consult in a redundancy case is subject to the principle recognised in Polkey v AE Dayton Services Ltd [1987] IRLR 503: consultation may be unnecessary where it would have been futile. The Employment Appeal Tribunal’s procedural discretion under rule 26 of the Employment Appeal Tribunal Rules 1993 is expressed by “may”, not “shall”.

Mr Metanie sought permission to appeal out of time from the Employment Appeal Tribunal’s dismissal of his appeal against an Employment Tribunal decision dismissing complaints of unfair dismissal and breach of contract.

The Employment Tribunal had found a genuine redundancy situation when the employer closed its Shoreditch site and moved the service department to Crawley. It concluded that formal consultation would have been futile because Mr Metanie knew of the proposed relocation and its reasons. It also found that his commission entitlement was 10 per cent and had been paid.

The Employment Appeal Tribunal permitted only challenges concerning the alleged futility of consultation and the commission rate. The central issues were whether the EAT had erred in refusing to debar the respondent under rule 26, whether the consultation finding was legally sustainable, and whether alleged forgery of documents could be raised for the first time on appeal.

1. Application dismissed. Mr Metanie had deliberately misled the court about the scope of the earlier hearing in order to obtain an adjournment. That misconduct, which wasted court time, independently justified dismissal of the application.
2. The application also failed because the proposed appeal had no real prospect of success and no other compelling reason had been shown for hearing it.
3. Rule 26 of the Employment Appeal Tribunal Rules 1993 provided that, where a party failed to comply with an order or direction, the EAT may debar that party or make another just order. The provision conferred a discretion and did not require a punitive order. In the circumstances, refusing to debar the respondent was not erroneous, particularly as Mr Metanie had not notified the respondent’s solicitors of his change of address and alleged no prejudice. The EAT had power to extend time under rule 32.
4. The EAT was entitled to uphold the finding that consultation would have been futile. The principle in Polkey v AE Dayton Services Ltd [1987] IRLR 503 recognised an exception to the ordinary obligation to consult where consultation would serve no useful purpose. The Trade Union and Labour Relations (Consolidation) Act 1992 did not supersede that principle. Section 195 was confined to Chapter II, concerning proposed redundancies of more than 20 employees at one establishment and consultation with employee representatives. It imposed no general duty to consult individual employees in the circumstances under consideration.
5. The challenge to the commission documents could not succeed. The alleged forgery had not been raised before the Employment Tribunal, the tribunal of fact. The EAT was therefore entitled to reject the point, and the preliminary hearing could not establish forgery without oral evidence or submissions from the respondent.
6. The unparticularised allegation that article 6 of the European Convention on Human Rights had been breached disclosed no arguable basis for appeal.

Order: application dismissed.

• Court of Appeal (Civil Division): Application for permission to appeal out of time dismissed.
• Employment Appeal Tribunal: Appeal dismissed on 21 November 2000.
• Employment Tribunal: Complaints including unfair dismissal and breach of contract dismissed on 26 February 1998.