Halliday v Archdiocese Of Southwark

On an application for permission to appeal from an employment tribunal, the appellate court addresses errors of law rather than disagreements with factual findings. Whether a redundancy situation exists is ordinarily a question of fact. Where the tribunal identifies the correct issues and applies sections 139 and 98 of the Employment Rights Act 1996, a party cannot obtain permission merely by rearguing the evidence, consultation, or the suitability of alternative employment. Permission should be refused where the proposed appeal has no real prospect of showing an error of law.

Mr Halliday, who had worked as Director of Music at St George’s Roman Catholic Cathedral, claimed unfair dismissal. The Employment Tribunal accepted that he was an employee but held that his dismissal was fair because the requirement for a full-time music director had ceased, consultation had taken place, and the only available alternative employment had been offered.

The Employment Appeal Tribunal dismissed his appeal, holding that he was attempting to reargue the facts and had not shown an error of law. He then applied to the Court of Appeal for permission to appeal, alleging errors concerning redundancy, consultation, the proposed contractual terms, alternative employment, and other factual matters. The central question was whether the proposed appeal had a real prospect of establishing an error of law.

Disposition. Lord Justice Mummery refused permission to appeal.

1. The jurisdiction of the Employment Appeal Tribunal and the Court of Appeal was confined to points of law. Neither court could retry the factual issues or re-hear the whole case.
2. Whether there was a redundancy situation was a question of fact, not law. On the facts found, the Employment Tribunal was entitled to conclude that the cathedral’s requirement for a full-time music director had ceased or diminished.
3. The Tribunal had correctly identified the relevant issues. It had decided that Mr Halliday was an employee, determined the reason for dismissal, and assessed whether dismissal for redundancy was fair. Its directions under section 139 of the Employment Rights Act 1996 and section 98 of that Act were correct.
4. The detailed complaints about the evidence, consultation, proposed terms, alternative employment, financial matters, and the choir’s activities amounted to an attempt to reargue factual matters. They did not disclose any real prospect of establishing an error of law. Evidence not placed before the fact-finding tribunal would not normally be admitted on appeal where it could have been obtained by reasonable efforts for use at the hearing.
5. The Court considered that pursuing the proposed appeal would have little prospect of success and exposed Mr Halliday to substantial costs. The application for permission to appeal was therefore refused.

1. Court of Appeal (Civil Division): refused Mr Halliday’s application for permission to appeal.
2. Employment Appeal Tribunal: dismissed Mr Halliday’s appeal, holding that the Employment Tribunal had not erred in law.
3. Employment Tribunal, London South: dismissed the unfair-dismissal claim after finding that Mr Halliday was an employee but that his dismissal for redundancy was fair.