Yeboah v Crofton

Permission to appeal may be granted where the proposed appeal has a real prospect of success. Permission need not be confined to selected grounds where discrete issues overlap with fundamental questions concerning the procedures and respective powers of an employment tribunal and the Employment Appeal Tribunal.

Where an arguable challenge could result in restoration of the employment tribunal’s decision and avoid a factual rehearing, the merits should be determined by the court hearing the appeal.

An employment tribunal found that the respondent had racially discriminated against the applicant. The Employment Appeal Tribunal, presided over by Burton J, regarded the tribunal’s decision as perverse, allowed the respondent’s appeal and remitted the matter for rehearing by a different tribunal.

The applicant sought permission to appeal. The proposed grounds concerned the procedures and powers of both tribunals, the Employment Appeal Tribunal’s criticisms of the original reasoning, and the employment tribunal’s approach to evidence of racial discrimination. The central questions were whether the proposed appeal had a real prospect of success and whether permission should be restricted to particular grounds.

1. Application for permission to appeal granted. Lord Justice Pill, giving the court’s reasons, held that the applicant had a real prospect of establishing that the employment tribunal’s reasoning and conclusion could be upheld despite the criticisms made of it. Success on the proposed appeal could remove the need for a rehearing.

2. The respondent also had an arguable case that the employment tribunal proceedings were fundamentally flawed and that a rehearing of the facts remained necessary regardless of defects in the Employment Appeal Tribunal’s reasoning. Those competing positions were matters for determination at the substantive appeal rather than at the permission stage.

3. Permission was granted generally. Although some proposed points were discrete, they overlapped with fundamental questions about the procedures followed by the employment tribunal and the Employment Appeal Tribunal, and about their respective powers. It was therefore impracticable to confine the appeal to specified grounds or to give further directions on the issues to be argued.

4. The employment tribunal’s use of the approach associated with King v China Clay in assessing evidence of racial discrimination was identified as an issue for the substantive appeal. The court did not determine that issue on the permission application.

5. The court directed that any further skeleton arguments be delivered by 30 September 2001 and replies by 14 October 2001. Three days were to be allowed for the hearing, with a fourth day available at the discretion of the constitution hearing the appeal. Costs were reserved to the rehearing.

1. Court of Appeal (Civil Division): Granted the applicant general permission to appeal from the Employment Appeal Tribunal’s order.

2. Employment Appeal Tribunal: Allowed the respondent’s appeals against the finding of racial discrimination, held the employment tribunal’s decision to be perverse and ordered a rehearing by a different tribunal.

3. Employment Tribunal: Unanimously found that the respondent had discriminated against the applicant and that the London Borough of Hackney had not done so.