Mensah v West Middlesex University Hospitals & Others

Permission to appeal from a refusal by the Employment Appeal Tribunal to review an earlier decision requires a real prospect of success. The applicant must identify an error of law in the refusal or show that the tribunal’s exercise of discretion was perverse. A review cannot ordinarily be used to reopen matters that were raised, or could have been raised, at the original hearing. Where an employment tribunal has identified independent jurisdictional grounds, an appeal has no real prospect of success if each ground remains sufficient to defeat the claim.

The applicant, a bank nurse, claimed unfair dismissal and related statutory breaches. An Employment Tribunal decided that she was not an employee and therefore had no jurisdiction. It also held that, even if she had been an employee, she had not completed the then-required two years of continuous employment.

The Employment Appeal Tribunal dismissed her appeal and later refused an application under rule 33 of the Employment Appeal Tribunal Rules 1933 to review its decision. The applicant sought permission to appeal, relying on new evidence and European Community law, including a decision of the European Court of Justice which she said confirmed her employee status. The central issue was whether the refusal of review had a real prospect of being successfully challenged.

1. Application refused. Lord Justice Mummery refused permission to appeal because the proposed appeal had no real prospect of success.
2. The relevant question was whether the refusal of review contained an error of law or was perverse, in the sense that no reasonable tribunal appreciating the application and its grounds would have refused to exercise its discretion in favour of a review.
3. The original Employment Tribunal had given two independent reasons for concluding that it lacked jurisdiction over the unfair-dismissal claim. First, the applicant had not established that she was an employee. Secondly, on the dates stated in her own application, she had worked for less than the two-year qualifying period then required to acquire the right not to be unfairly dismissed.
4. The applicant’s earlier appeal to the Employment Appeal Tribunal had failed, and permission to appeal to the Court of Appeal had previously been refused. The matters raised in her later letter, including alleged new evidence and reliance on European Community law, did not justify reopening the matter by review.
5. The Employment Appeal Tribunal was entitled to reject the review application in the exercise of its discretion. The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Permission to appeal against the Employment Appeal Tribunal’s refusal of review was refused.
• Employment Appeal Tribunal: The applicant’s appeal from the Employment Tribunal was dismissed. A later application to review that decision was refused.
• Employment Tribunal: The tribunal held that it had no jurisdiction to hear the unfair-dismissal claim because the applicant was not an employee and, alternatively, because she lacked the required two years of continuous employment.