Apelogun-Gabriels v Employment Appeal Tribunal

An appeal from an Employment Appeal Tribunal lies only on a point of law. The Court of Appeal does not re-determine factual disputes or intervene merely because the Employment Appeal Tribunal’s reasoning may be imperfect. An applicant must identify a legitimate error of law, procedural error, or perversity in the Employment Tribunal’s decision. Where an Employment Appeal Tribunal remits issues involving limitation and estoppel to a differently constituted tribunal, the Court of Appeal may adjourn a permission application where the EAT’s directions require further scrutiny and relevant documents are needed.

The applicant brought two applications for permission to appeal against decisions of the Employment Appeal Tribunal.

In the first matter, the Employment Tribunal had dismissed complaints of direct racial discrimination and victimisation. The EAT dismissed the appeal. The applicant challenged the factual comparisons and the treatment of his grievance procedure.

In the second matter, the Employment Tribunal had ruled that it had jurisdiction over specified complaints and listed the case for a full merits hearing. The employers appealed. The EAT allowed that appeal and remitted the matter to a differently constituted tribunal, raising issues concerning limitation, reliance on Aniagwu v. London Borough of Hackney & Owen, Robinson v. Post Office, and estoppel, including Henderson v. Henderson.

1. Application 0605. The Employment Tribunal was the fact-finding tribunal. The Court of Appeal’s jurisdiction was confined to errors of law, procedural errors, or findings properly characterised as perverse. The applicant’s complaints about comparators and the use of the grievance procedure did not disclose an arguable error of that kind. Permission to appeal was refused.
2. The reasoning of the Employment Appeal Tribunal, considered by itself, did not create a right of appeal to the Court of Appeal. The relevant question was whether a legitimate complaint could be made about the Employment Tribunal’s findings or procedure.
3. Application 0618. The EAT had attempted to deal with apparently conflicting authorities on time limits and with possible res judicata and wider Henderson v. Henderson estoppel. The proposed remission and the limitations placed on the issues required further scrutiny.
4. The permission application was therefore adjourned. The applicant was directed to provide the documents supplied pursuant to the EAT’s order. Attendance by the respondents was suggested. If permission were granted, the appeal was to follow immediately before a three-judge court, with an estimated hearing time of two hours. The applicant could also seek permission to amend the notice of appeal to raise the estoppel issue.

• Employment Tribunal: dismissed the applicant’s racial discrimination and victimisation complaints in the first matter; in the second, ruled that it had jurisdiction over specified complaints and listed the matter for a merits hearing.
• Employment Appeal Tribunal: dismissed the first appeal; in the second, allowed the employers’ appeal and remitted the matter to a differently constituted tribunal.
• Court of Appeal (Civil Division): refused permission in number 0605 and adjourned the permission application in number 0618.