Lambert v Lowery & Anor

An Employment Tribunal’s power to review a decision under rule 11 is wide, but absence of a party does not automatically require a review. The Tribunal must exercise its discretion on the evidence and in the interests of justice. An appellate court should interfere only if the discretion is plainly wrong or flawed by an error of principle or failure to understand essential facts and law. Where the decision rests on a credibility finding made after oral evidence and cross-examination, an appeal cannot obtain permission by rearguing that finding or over-analysing the reasons. A later error in a related case does not, without more, invalidate an independently reasoned review decision.

Mr Lambert’s employment claims for unfair dismissal, breach of contract and racial discrimination were dismissed when neither he nor his representative attended the listed hearing. On review, the Employment Tribunal relied on rule 11(1)(c) and (e) of the Rules of Procedure, found that Mr Lambert genuinely did not know the hearing date, and ordered the claim to be relisted before a fresh tribunal.

The Employment Appeal Tribunal dismissed the employer’s preliminary appeal as unarguable, finding no error of law or perversity. The employer sought renewed permission to appeal, arguing that Mr Lambert lacked a good reason for non-attendance, that the Tribunal’s reasons were inadequate, and that it had relied on a related decision which was later set aside. The central issue was whether the discretionary review decision disclosed an arguable error of law with a real prospect of success.

Application refused. Lord Justice Mummery held that the proposed appeal had no real prospect of success. Lord Justice Rix agreed.

1. The Employment Tribunal had a wide discretion under rule 11 to review its decision. The fact that the original decision was made in a party’s absence was a relevant ground, but absence alone was not sufficient. The Tribunal had expressly rejected that approach and relied on both the absence ground and the interests of justice.
2. An appellate court should interfere with the exercise of such a discretion only where it is plainly wrong or is flawed by an error of principle or a failure to understand the essential facts and law involved.
3. The review decision rested on a finding made after the Tribunal had heard and tested Mr Lambert’s evidence in cross-examination. The employer’s challenge questioned his credibility and sought to reopen an essential finding of fact. The Tribunal was entitled to believe that he had honestly been unaware of the hearing. Over-critical analysis of the wording of its reasons did not establish perversity or an error of law.
4. The employer’s reliance on the later appellate decision in Mr Ali’s related case did not establish that the review decision was legally infected. The review was independently supported by the Tribunal’s factual finding and its assessment of the interests of justice. It merely allowed Mr Lambert to receive a contested hearing; it did not determine the merits of his claims.
5. The Employment Appeal Tribunal had therefore been entitled to dismiss the appeal at a preliminary hearing. The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division): A paper application for permission to appeal was refused on 15 December 2000. The renewed application was heard on 2 February 2001 and refused.
• Employment Appeal Tribunal: At a preliminary hearing on 19 October 2000, the employer’s appeal against the review decision was dismissed as unarguable. No error of law or perversity was identified.
• Employment Tribunal: The original claims were dismissed in Mr Lambert’s absence. On 7 December 1999, the Tribunal unanimously granted a review and directed that the claims be relisted before a fresh tribunal.