Coxon (Aka Asselman) v Rank Xerox (UK) Ltd

Permission to appeal requires a real prospect of showing that the lower appellate tribunal erred in law. A party cannot challenge an Employment Appeal Tribunal for failing to decide an issue that was not materially advanced before it. Substantial delay in lodging the appellant’s notice may provide an additional reason for refusal where the proposed appeal lacks merit. A later attempt to recast an issue as a distinct discrimination complaint will not create a viable appeal where the original tribunal addressed the substance of the matter.

Coxon (Aka Asselman) v Rank Xerox (UK) Ltd concerned an application for permission to appeal from a preliminary order of the Employment Appeal Tribunal dated 9 March 2001.

The Employment Tribunal had found that the applicant’s sex-discrimination complaints were out of time and declined, under section 76(5) of the Sex Discrimination Act 1975, to extend time on the just and equitable ground. The EAT allowed a victimisation claim to proceed to a full appeal but did not allow the out-of-time sex-discrimination claim to proceed. The central issue was whether the applicant had put her technical-training complaint before the EAT and whether there was a real prospect of showing an error of law.

Application refused. Lord Justice Keene considered the proposed appeal on its merits despite the appellant’s notice having been lodged approximately three months out of time. He stated that delay would not itself defeat an appeal with a real prospect of success.

1. The Employment Tribunal had considered the applicant’s sex-discrimination complaints. It had found that the potentially relevant acts occurred while she was working on the Helpline team, and that the complaint was out of time. It had considered whether time should be extended under section 76(5) of the Sex Discrimination Act 1975 on the just and equitable ground, but declined to do so.
2. The EAT had treated the argument that later disciplinary action and dismissal, based on the applicant’s reaction to earlier discrimination, brought the earlier acts within time as misconceived. The EAT had nevertheless allowed the victimisation claim to proceed to a full appeal.
3. The applicant’s separate complaint that she had been denied technical training in the marketing department was not shown to have been put to the EAT as a material ground of appeal. The Employment Tribunal’s extended reasons had also addressed training, finding that the organisation of training had lacked adequate transparency and that the matter had since been addressed.
4. The applicant’s skeleton argument before the EAT referred to training reducing after discussions about bringing a discrimination claim, and to an Oracle course not materialising. It did not clearly allege that she had received less or worse technical training than male colleagues, or that the EAT had failed to address such a legal issue. If the point was not put before the EAT, the EAT could not be criticised for failing to determine it.

There was therefore no real prospect of establishing that the EAT had erred in law. The application was dismissed both on its merits and because the appellant’s notice was substantially out of time. Order: application refused.

1. Court of Appeal (Civil Division) — On 11 October 2001, the application for permission to appeal was refused: [2001] EWCA Civ 1535.
2. Employment Appeal Tribunal — At a preliminary hearing, the EAT permitted a full appeal on specified issues, including victimisation, but not on the sex-discrimination claim because it was out of time.
3. Employment Tribunal — The tribunal found that the sex-discrimination complaint was out of time and declined to extend time under section 76(5) of the Sex Discrimination Act 1975.