Willis v Mars Confectionery

An appeal to the Employment Appeal Tribunal is confined to the grounds in the notice of appeal unless leave to amend is obtained. An out-of-time amendment is discretionary. Appellate interference is justified only for an error of law, reliance on an irrelevant matter, failure to consider a relevant matter, or a plainly wrong decision. A litigant cannot bypass that requirement by advancing new points in a skeleton argument. The EAT may prepare a document bundle for its members without supplying an identical bundle to the appellant. Permission should be refused where the proposed appeal has no real prospect of success and no other compelling reason justifies allowing it to proceed.

The applicant’s employment tribunal claims for sex discrimination and victimisation under the Sex Discrimination Act 1975 were dismissed after a hearing in which the tribunal accepted the employer’s evidence. The Employment Appeal Tribunal dismissed her appeal.

At a preliminary hearing, the applicant sought to challenge numerous factual findings and procedural matters through a skeleton argument, although her original grounds of appeal had been confined to disclosure. She alleged that an application for leave to amend had previously been sent by the Citizens Advice Bureau and complained that the EAT had not supplied her with its document bundle. The issue was whether the EAT had acted improperly in confining her to the pleaded grounds and whether the proposed appeal had a realistic prospect of success.

The Court of Appeal, in a single judgment delivered by Lord Justice Peter Gibson, dismissed the application for permission to appeal.

1. Under the Employment Appeal Tribunal Rules 1993, an appellant must serve a notice of appeal in the prescribed form and state the grounds of appeal. Those grounds are the grounds of the appeal unless leave to amend is obtained. An application to amend outside the 42-day period is a matter for the EAT’s discretion.
2. The Court of Appeal could interfere with that discretionary decision only if the EAT had erred in law, taken account of an irrelevant matter, omitted a relevant matter, or acted plainly wrongly. On the material before it, the EAT was entitled to refuse to permit arguments in the applicant’s skeleton argument which went beyond the grounds received in July 1997. The applicant had confined herself to a disclosure point, had abandoned that point before the EAT, and had not produced or properly pursued the alleged application to amend.
3. The later affidavit and document did not establish that the amendment application had been received by the EAT. The absence of evidence from the Citizens Advice Bureau, the form and wording of the document, the EAT Registrar’s indication that it had not been received, and the applicant’s failure to follow it up justified the conclusion that the evidence did not give a realistic prospect of success.
4. The complaint concerning the EAT’s bundle was based on a misunderstanding. Paragraph 6(1) of the Employment Appeal Tribunal Practice Direction reflected the usual practice that a bundle was prepared for the EAT members, and imposed no obligation to prepare a separate bundle for the litigant.
5. There was no real prospect of success and no other compelling reason for the appeal to proceed. Application dismissed.

• Employment Tribunal, Reading: dismissed the applicant’s claims for sex discrimination and victimisation on 30 January 1997.
• Employment Appeal Tribunal: dismissed the applicant’s appeal. Its order was made at a preliminary hearing on 26 February 2001.
• Court of Appeal (Civil Division): dismissed the application for permission to appeal: [2001] EWCA Civ 1210.