Bibby v Hurel-Dubois UK Limited

An application for permission to appeal should be refused where the proposed grounds have no real prospect of success and no other compelling reason justifies an appeal.

A party who deliberately declines to attend a hearing cannot ordinarily establish an unfair hearing merely because the tribunal refused an inadequate adjournment request. Different decisions on adjournment applications do not demonstrate bias where each application was judicially assessed and the reasons materially differ. A new statutory discrimination claim raised at the permission stage may be rejected as too late and irrelevant to the decision under challenge.

Mr Bibby brought an unfair dismissal claim against his former employer. The Employment Tribunal struck out the claim under rule 13(2)(e) of the Employment Tribunal Rules 1993, finding that he had conducted the proceedings vexatiously and abusively. His application for review was refused because he had deliberately chosen not to attend the hearing.

The Employment Appeal Tribunal rejected his complaints of unfairness, bias, favouritism and breach of Article 6 of the European Convention on Human Rights. Mr Bibby sought permission to appeal to the Court of Appeal, repeating those complaints and adding an allegation under the Disability Discrimination Act 1995.

Application refused. Lord Justice Peter Gibson held that none of the proposed grounds had a real prospect of success and that no other compelling reason had been shown for the appeal to be heard.

1. The absence of Mr Bibby from the Employment Tribunal hearing did not establish a breach of Article 6. He had refused to attend on the listed date after his adjournment request was refused. He had not informed the tribunal of the later-mentioned conference with counsel, had not shown that it pre-dated his refusal to attend, and had not explained why it could not be rearranged.
2. The handling of the adjournment applications disclosed no bias or favouritism. Each application required judicial assessment. Mr Bibby’s applications lacked adequate grounds, whereas the employer’s application was supported by a cogent reason.
3. The employer’s letter to the Regional Chairman was ill-advised because it asked that it be withheld from Mr Bibby, but there was no evidence that the Employment Tribunal Chairman had seen it before deciding the case. The decision was based on matters raised at the hearing.
4. Reference to Mr Bibby’s harassment conviction did not demonstrate bias. In civil proceedings concerning alleged harassment, the fact of the conviction could properly be mentioned. An inaccurate description of who had applied for joinder was immaterial because the individuals were not joined and the error did not affect the decision.
5. The proposed disability discrimination ground was raised too late. It had not appeared in the originating application or subsequent correspondence and, in any event, did not concern the basis on which the claim had been struck out.

The application was therefore refused.

• Court of Appeal (Civil Division): On 25 October 2001, the application for permission to appeal was refused.
• Employment Appeal Tribunal: On 21 May 2001, it rejected the complaints of bias, unfairness and breach of Article 6 and found no error of law.
• Employment Tribunal: The claim was struck out on 31 October 2000 for vexatious conduct. An application for review was refused on 28 September 2000.